Provident Capital Limited v Agusta Pty Ltd and Nida Ferella [2007] NSWDC 309

New South Wales District Court

CITATION: Provident Capital Limited v Agusta Pty Ltd and Nida Ferella [2007] NSWDC 309

HEARING DATE(S): 22 November 2007 EX TEMPORE JUDGMENT DATE : 23 November 2007

JURISDICTION: Civil

JUDGMENT OF: Phegan DCJ

DECISION: 1. Verdict and Judgment for the Plaintiff in the sum of $119,341.00 together with interest in the amount of $19,225.34; 2. Defendants to pay Plaintiff's costs as agreed or assessed

CATCHWORDS: Breach of Contract - Mortgage Finance - Variation of Terms - Damages

CASES CITED: Jones v Dunkel (1959) 101 CLR 298

PARTIES: Provident Capital Limited v Agusta Pty Ltd and Nida Ferella

FILE NUMBER(S): 4539/06

COUNSEL: Mr Carroll (Plaintiff) Mr Stomo (First and Second Defendants)

SOLICITORS: Tiernan & Associates Lawyers (Plaintiff) Colin Biggers & Paisley Lawyers (First and Second Defendants)

- 1 -

JUDGMENT

1 HIS HONOUR: In this matter the plaintiff, Provident Capital Limited sues the first and second defendants, Agusta Pty Limited and Nida Ferella as first and second defendants, respectively, to recover monies due by way of application fee, legal fees and other related expenses allegedly incurred by the plaintiff in the processing of an application for mortgage finance on behalf of the first defendant. Mrs Ferella, the second defendant is sued as a guarantor of the first defendant.

2 The Ferella Family Trust, referred to most often as, the Cavallino Unit Trust, which owned property including real estate known as 1 Wingadel Place, Point Piper. That property was registered in the names of Angelo and Gustavo Ferella, the evidence being that they became a registered proprietors in their capacity as trustees of the Cavallino Unit Trust. Angelo and Gustavo Ferella are, respectively, the son and husband of the second defendant Nida Ferella.