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 2008JURISDICTION: 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-DefendantsFILE 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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- AGLC
- Vella v Mitchell Morgan Nominees Pty Ltd [2008] NSWSC 511
- Case
- [2008] NSWSC 511
- Decision Date
CaseChat Overview and Summary
The court examined the nature of the mortgage and the transactions leading up to it, determining whether Vella had any obligation to repay the funds allegedly deposited into the joint bank account. The court also assessed the cross-claims filed by Mitchell Morgan against Vella, Hunt & Hunt, and the ANZ Bank, and the fifth cross-claim by Hunt & Hunt against Lorenzo Flammia. The court had to decide if Hunt & Hunt were negligent in their work for Mitchell Morgan, if the ANZ Bank was liable for receiving the funds by mistake, and if Flammia should indemnify Hunt & Hunt for any liability to Mitchell Morgan.
The court concluded that Vella was not liable for the funds in the joint bank account, and thus the mortgage was invalid. The cross-claim against Vella was dismissed, and the third cross-claim by Mitchell Morgan against the ANZ Bank was also dismissed. The second cross-claim by Mitchell Morgan against Hunt & Hunt was partially successful, with Hunt & Hunt found to be 12.5% liable for their negligence. The fifth cross-claim by Hunt & Hunt against Flammia was successful, and Flammia was ordered to indemnify Hunt & Hunt for their liability to Mitchell Morgan. Additional orders were made in relation to other associated litigation.
The final orders of the court were that Vella should be restored to the title as holding his interest unencumbered by the mortgage of Mitchell Morgan. The first cross-claim against Vella was dismissed. The second cross-claim against Hunt & Hunt succeeded as to 12.5% of their loss. The third cross-claim against the ANZ Bank was dismissed. The fifth cross-claim by Hunt & Hunt against Flammia succeeded, and Flammia was ordered to indemnify Hunt & Hunt against their liability to Mitchell Morgan. Other orders were made in relation to associated litigation.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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