Vella v Mitchell Morgan Nominees Pty Ltd

[2008] NSWSC 511

CITATION:	Vella v Mitchell Morgan Nominees Pty Ltd [2008] NSWSC 511
HEARING DATE(S):	3, 4, 5, 6, 7, 10, 12 and 13 March 2008
JUDGMENT DATE :	28 May 2008
JURISDICTION:	Equity Division
JUDGMENT OF:	Young CJ in Eq
DECISION:	Orders to be made restoring the plaintiff to the title as holding his interest unencumbered by the mortgage of Mitchell Morgan. First cross-claim against Mr Vella dismissed. Second cross-claim against Hunt & Hunt suceeds as to 12.5% of their loss. Third cross-claim against the ANZ Bank dismissed. Fifth cross-claim by Hunt & Hunt against Mr Flammia succeeds for the reasons given in 4122/06. Mr Flammia should indemnify Hunt & Hunt against their liability to Mitchell Morgan. Other orders made in associated litigation.
PARTIES:	Alessio Emanuel Vella (P) Mitchell Morgan Nominees Pty Ltd (D1) Mitchell Morgan Nominees (No 2) Pty Ltd (D2) Hunt & Hunt (Cross-Defendant in Second Cross-Claim) Australia and New Zealand Banking Group Limited (Cross-Defendant in Third Cross-Claim) James Rutty (Third Cross-Defendant in Fifth Cross-Claim) No appearance of other Cross-Defendants
FILE NUMBER(S):	SC 4059/06
COUNSEL:	M J Slattery QC, D A Smallbone and L M Wilson (P) B A Coles QC and G A Sirtes (D) J W Stevenson SC and N Kabilafkas (2XD) R G Forster SC and P J Dowdy (3XD) P Morris (5XD3)
SOLICITORS:	Slater & Gordon Lawyers (P) Abbott Tout (D) Mallesons Stephen Jaques (2XD) Henry Davis York (3XD) Moray & Agnew (5XD3)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Wednesday 28 May 2008

4059/06 – VELLA v MITCHELL MORGAN NOMINEES PTY LTD

JUDGMENT

1 HIS HONOUR: These proceedings were heard together with No 4122/06 and four other matters.

2 The plaintiff, Alessio Vella, seeks a declaration that no monies are owing by him secured by a mortgage registered AC56277M affecting the land comprised in Folio Identifier F/443979 being land at Enmore.

3 The hearing took place together with 4122/06. Mr M J Slattery QC, Mr D A Smallbone and Ms L Wilson appeared for the plaintiff. Mr B A Coles QC and Mr G A Sirtes appeared for Mitchell Morgan. Mr J W Stevenson SC and Mr N Kabilafkas appeared for Hunt & Hunt. Mr R G Forster SC and Mr P J Dowdy appeared for the ANZ Bank, and Mr P Morris for Mr Rutty.

4 Mitchell Morgan issued a cross-claim against the plaintiff alleging that the plaintiff had received into a bank account of which he was a co-owner $1.13 million which he should refund. Mitchell Morgan also filed a second cross-claim against the solicitors who acted for it, Hunt & Hunt, alleging negligent performance of the work that they were to do under the retainer from Mitchell Morgan. Hunt & Hunt’s defence was not only a denial, but also a reliance on s 34 of the Civil Liability Act 2002 – apportionment with alleged concurrent wrongdoers, Lorenzo Flammia, Tony Caradonna and James Marc Rutty.

5 There is a third cross-claim by Mitchell Morgan against the ANZ Bank for $1,001,748.85 because it says the ANZ Bank received the payment of that sum from the relevant transaction by mistake.

6 The fourth cross-claim has been abandoned.

7 The fifth cross-claim by Hunt & Hunt is against Lorenzo Flammia, solicitor, Tony Caradonna and James Rutty. Mr Flammia is now a bankrupt and the cross-claim has been discontinued against the other cross-defendants. However, an order was made under s 58 of the Bankruptcy Act 1966 authorising the continuance of the proceedings against Mr Flammia up until judgment.

8 For the reasons given in 4122/06, the plaintiff is entitled to the declaration that he seeks and to be restored to his land free of the mortgage. The cross-claim against Mr Vella is dismissed, a matter considered in the main judgment. The third cross-claim by Mitchell Morgan against the ANZ Bank is dismissed.

9 For the reasons given in 4122/06, Mitchell Morgan’s cross-claim against Hunt & Hunt succeeds as to 12.5% of its loss.

10 The fifth cross-claim by Hunt & Hunt against Mr Flammia succeeds for the reasons given in 4122/06 and Mr Flammia should indemnify Hunt & Hunt against their liability to Mitchell Morgan.

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