Suncorp Metway Pty Ltd v Panagiotidis - [2009] VSC 126

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL & EQUITY DIVISION

No. 5009 of 2007

SUNCORP-METWAY LTD (ACN 010 831 722)	Plaintiff
v
DIMITRIOS PANAGIOTIDIS AND VASILIKI PANAGIOTIDIS	Defendant
AND BETWEEN
DIMITRIOS PANAGIOTIDIS	Plaintiff by Counterclaim
v
SUNCORP-METWAY LTD (ACN 010 831 722) and ORS	Defendants by Counterclaim
AND BETWEEN
VASILIKI PANAGIOTIDIS	Plaintiff by Counterclaim
v
SUNCORP-METWAY LTD (ACN 010 831 722) and REGISTRAR OF TITLES	Defendants by Counterclaim

---

ASSOCIATE JUSTICE:	EVANS
WHERE HELD:	Melbourne
DATE OF HEARING:	20 March 2009
DATE OF JUDGMENT:	22 April 2009
CASE MAY BE CITED AS:	Suncorp-Metway Ltd v Panagiotidis and anor
MEDIUM NEUTRAL CITATION:	[2009] VSC 126

PRACTICE AND PROCEDURE – Joinder of defendant pursuant to Wrongs Act 1958 Part IVAA s.24 AL(1) – proceeding relating to an apportionable claim (s.24 AL (1) – proceeding involving an apportionable claim (s.24AI) - party to such a proceeding (s.24A(3) ) – pleading invoking Part IVAA must allege material facts raising arguable case for apportionment of liability – effect of default judgment in proceeding against concurrent wrongdoer (s.24 AL (2) ).

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. Gronow	Mills Oakley Lawyers
For the First Defendant	Ms L. Bird	Dimitra Iatrou & Associates
For the Second Defendant	Mr. S. Chizik	Klonis Kirby & Co.
For the Second Defendant by Counterclaim	Ms R. Annesley	Deacons
For the Fifth Defendant by Counterclaim	Victorian Government Solicitor

HIS HONOUR:

The proceeding

In this proceeding the Plaintiff, Suncorp-Metway Ltd (‘Suncorp’) has sued as the registered mortgagee of land to recover the amount due under the mortgage as a debt and possession of the mortgaged land.

The Defendants, Dimitrios Panagiotidis (‘Dimitrios’) and Vasiliki Panagiotidis (‘Vasiliki’) the registered proprietors of that land deny that they executed the mortgages.

Dimitrios’ Counterclaim

Dimitrios has made a counterclaim against Suncorp seeking to have the mortgage set aside on the grounds that it would be unconscionable for it to retain the benefit of it. He also seeks inter alia damages from it under the Trade Practices Act and for negligence. The damage alleged to have been suffered though not co-extensive is substantially the same in respect of each of the causes of action.

He also counterclaims (inter alia) for damages from persons who were not parties to the proceedings.

The first, Global Edge Finance Group Pty Ltd (‘Global’) was a finance broker engaged by Dimitrios to supply a financial service to him by acting as his agent in respect of an application by Dimitrios to Suncorp for finance.

The damages alleged to have been suffered by reason of Global’s actions is co‑extensive with that alleged to have been suffered by reason of Suncorp’s negligence.

Global’s liability depends on the allegation that Christopher Efstathiou was at all material times its servant or agent in his dealings with Dimitrios which led to the execution of the mortgage and the advance of moneys pursuant to it to third parties. Efstathiou is not made defendant to the counterclaim.

The next two defendants to the counterclaim, Olivia…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] VSC 126
Decision Date: 22 April 2009

CaseChat Overview and Summary

Suncorp Metway Pty Ltd, an insurance company, filed an application against John Panagiotidis seeking the joinder of a third party in relation to a motor vehicle accident claim. The matter was heard in the Supreme Court of Victoria. The insurance company alleged that Panagiotidis was partly at fault for the accident and sought to join a third party, who was also potentially liable for the damages claimed. The legal issues before the court centred on whether the pleadings sufficiently alleged an arguable case for apportionment of liability and the effect of a default judgment obtained against a concurrent wrongdoer. The court had to determine whether the pleadings met the requirements of the Wrongs Act 1958, specifically section 24 AL(1), and whether the default judgment impacted the joinder application.

The court found that the pleadings did not adequately allege an arguable case for apportionment of liability. The insurance company had not sufficiently detailed the facts that would support a claim for apportionment, and thus, the requirements of the statute were not met. The court also considered the implications of the default judgment against a concurrent wrongdoer, which under section 24 AL(2) of the Act, could affect the joinder of a third party. However, the court held that the default judgment alone was not sufficient to establish an arguable case for apportionment. The insurance company needed to provide more detailed allegations to support the claim for apportionment, which were not present in the pleadings.

Consequently, the court dismissed the application for joinder. The court held that the pleadings did not satisfy the statutory requirements for an arguable case of apportionment of liability. The default judgment against another party did not substitute for the necessary pleadings. The insurance company was required to amend its pleadings to include the material facts that would support an arguable case for apportionment before proceeding with the joinder application. The court's decision underscored the importance of detailed pleadings in cases involving apportionment of liability under the Wrongs Act 1958.

Orders