Ribchenkov v Suncorp-Metway Limited [2000] FCA 835

FEDERAL COURT OF AUSTRALIA

Ribchenkov v Suncorp-Metway Limited [2000] FCA 835

EQUITY – application to set aside mortgage – where bank reasonably believed that non-English speaking mortgagor had received adequate independent advice explaining the nature and extent of her obligations pursuant to impugned mortgage, but advice in fact inadequate – whether bank had a duty to disclose certain features of principal debtor's financial circumstances to mortgagor - whether bank engaged in unconscionable conduct or undue influence, or took advantage of undue influence, in taking mortgage EQUITY – where bank aware of special disability of mortgagor and her need for independent advice, but did not take steps to ensure that she was adequately advised in respect of further advances supported by the mortgage – whether unconscionable to permit bank to enforce remedies in respect of those advances PRINCIPAL & AGENT – where principal debtor procures further surety required by creditor before granting loan – whether principal debtor acts on own behalf or as agent of creditor TORTS – application for damages for fraud and negligence against solicitor – where mortgagor not adequately advised about the nature and extent of obligations – where, if adequately advised, mortgagor would not have entered agreement – whether solicitor negligent or fraudulent in provision of advice INSURANCE – professional indemnity – where solicitor's professional indemnity policy excluded indemnity for liability arising from fraud or dishonesty – whether liability for loss caused by provision of inadequate advice so arose

Trade Practices Act 1974 s 52, s 84 (2)

Garcia v National Australia Bank (1998) 155 ALR 614 cited Alderton v Prudential Assurance Co (1993) 41 FCR 435 cited Kings North Trust Ltd v Bell [1986] 1 WLR 119 cited Platzer v Commonwealth Bank of Australia [1997] 1 QdR 266 cited Lisciandro v Official Trustee in Bankruptcy (1995) ATPR 41436 at 40903 cited Lisciandro v Official Trustee in Bankruptcy (1996) 139 ALR 689 cited Barclays Bank Plc v O'Brien [1994] 1 AC 180 cited Garcia v National Australia Bank Ltd (1998) 194 CLR 395 cited Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 cited Yerkey v Jones (1939) 631 CLR 649 cited Bridgewater v Leahy (1998) 158 ALR 66 cited Barclays Bank plc v Thomson [1997] 4 All ER 816 cited McNamara v Commonwealth Trading Bank (1984) 37 SASR 232 cited ALEVTINA RIBCHENKOV v SUNCORP-METWAY LIMITED, SEBASTIAN ANTHONY SAPUPPO & AUSTRALIAN PACIFIC PROFESSIONAL INDEMNITY INSURANCE COMPANY LTD ACN 072 266 909 QG 33 OF 1997