Permanent Trustee Australia Limited & Anor v Saitannis [2002] NSWSC 1209

New South Wales Supreme Court

CITATION : Permanent Trustee Australia Limited & Anor v Saitannis [2002] NSWSC 1209 revised - 29/01/2003 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 11520/02 HEARING DATE(S) : 18 November 2002 JUDGMENT DATE : 18 December 2002

Permanent Trustee Australia Limited - First Plaintiff PARTIES : Challenger Managed Investments Limited - Second Plaintiff John Saitannis - Defendant JUDGMENT OF : Mathews AJ

COUNSEL : M Cohen - Plaintiff J Conomos with S Burchett - Defendant SOLICITORS : Yandell Wright Stell - Plaintiffs Barclay Benson Lawyers - Defendant CATCHWORDS : Application for summary judgment - misconceived defences - judgment entered. Real Property Act (1900)(NSW LEGISLATION CITED : Corporations Act 2001 Trade Practices Act 1974 (Cth) Australian Securities and Investments Commission Act (Cth) 1989 CASES CITED : Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447 DECISION : See paragraph 45

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MATHEWS AJ

18 December 2002

11520/02 PERMANENT TRUSTEE AUSTRALIA LIMITED & ANOTHER v John SAITANNIS

JUDGMENT 1 HER HONOUR: This matter comes before the court by way of notice of motion filed on behalf of the plaintiff, seeking that judgment be entered pursuant to Pt 13 r 2 of the Supreme Court Rules. Other orders were also sought, but it was the plaintiff's application for judgment which was the primary matter in issue and upon which I reserved my judgment. 2 Much of the factual background of the matter is undisputed. The first plaintiff is the custodian of the Howard Mortgage Trust ("the Trust") which provides funds for loan upon commercial terms. It is also the mortgagee of any property which may be provided by way of security for loans advanced by the Trust. The second plaintiff is the trustee of the Trust. The defendant is the registered proprietor of shop premises at 161 King Street, Newtown NSW. ("The Newtown premises") 3 On 5 October 2001 the defendant and his wife, Spiridoula Saitannis, executed a deed of loan between the plaintiffs as lenders and themselves as borrowers pursuant to which $613,000 was to be made available to them by way of cash advance. The loan was to be repaid in full on 1 November 2002. Interest was payable on the principal sum outstanding at the initial "higher rate" of 11.5 per cent per annum, on the basis that interest at the "lower rate" of 7.5 percent per annum would be accepted if payments were made within seven days of falling due. 4 Also on 5 October 2001 Mr Saitannis entered into a memorandum of mortgage in favour of the first plaintiff over the Newtown premises. The purpose of the mortgage was to secure all moneys outstanding under the deed of loan. 5 On 1 March 2002 Mr and Mrs Saitannis defaulted in their monthly payments under the loan agreement. On 17 April 2002 the first plaintiff served a default notice on Mr Saitannis pursuant to s 57(2)(b) of the Real Property Act (1900) (NSW) ("the Real Property Act"). On 21 May 2002 Mr Saitannis's solicitor contacted the first plaintiffs' solicitor and told him that the loan had been taken out by Mr Saitannis for the purpose of investing in a scheme promoted by Karl Suleman Enterprises (KSE). He indicated that he had instructions to commence legal proceedings against various persons associated with the KSE scheme in order to recover the Saitannis' money, and asked whether the plaintiffs would withhold action in the meantime. On 24 May 2002 the plaintiffs' solicitors responded that they were instructed to commence immediate proceedings against Mr Saitannis. These proceedings were commenced on 31 May 2002. 6 On 11 June 2002 a notice pursuant to ss 60 and 63 of the Real Property Act was forwarded to the tenant of the Newtown premises requiring that all rental payments be made to the first plaintiff. On 29 July 2002 a defence was filed in these proceedings on behalf of Mr Saitannis. He admitted entering into the mortgage and the loan agreement and receiving the principal amount under the loan. However he denied that he was liable to pay any amount under either the loan agreement or the mortgage. He went on to raise, in purported defence of the claim, a number of issues. These were, as plaintiffs' counsel has rightly pointed out, properly in the nature of cross-claims rather than defences. However the objections raised by the plaintiffs do not relate to the form of the pleading but rather to their substance. 7 Under the first "defence", it was asserted that Mr Saitannis's execution of the loan agreement and the mortgage was procured on behalf of the plaintiffs by a number of named persons, for the purpose of funding Mr Saitannis's entry into the KSE scheme. It was alleged that an agency relationship existed between those persons and the plaintiffs. The purported investment scheme was an unlicensed managed investment scheme within the meaning of s 601ED of the Corporations Act 2001, it was asserted, and a pyramid scheme within the meaning of s 61 ot the Trade Practices Act 1974 (Cth) and s 12DK of the Australian Securities and Investments Commission Act (Cth)1989 ("The ASIC Act"). It was claimed that as the loan agreement and mortgage were entered into by Mr Saitannis in order to subscribe for an interest in this illegal scheme, they also were void for illegality or alternatively were voidable at the instance of Mr Saitannis. 8 The second defence asserted that the loan agreement and mortgage, together with the "investment" in the KSE Scheme, constituted an unconscionable dealing which this Court would decline to enforce. It was claimed that Mr Saitannis was at a special disadvantage in judging the effect of the investment or loan agreement and mortgage, and in judging the prudence of entering into them, in a number of respects. These included his inability to read English, his negligible education, his lack of relevant business, investment or legal experience and the fact that he had received no competent legal advice. It was further asserted that he had acted under the undue influence of the representatives of KSE and the agents of the plaintiffs. The plaintiffs were said to have been aware of, or from proper enquiry ought reasonably to have been aware of, the special disadvantage suffered by Mr Saitannis. It was asserted that the plaintiffs had unreasonably failed to take steps to ensure that Mr Saitannis understood the risks involved and that unfair tactics had been used against him by the plaintiffs' agents. 9 Finally the defence asserted a claim in negligence. It was said that it was a condition of the loan agreement and mortgage "that the plaintiffs warranted that their financial services were rendered with due care and skill pursuant to s 12ED of ASIC Act." In breach of that warranty it was said that the plaintiffs were negligent in granting the loan and procuring the execution of the loan agreement and mortgage. Under this head it was asserted that the employees and agents of KSE, including two named persons, had represented to Mr Saitannis and his wife that the KSE scheme was a secure, profitable and prudent and legal investment. Further, Mr Saitannis had sought independent legal advice but been given no warnings about the investment. In reliance upon all these representations he and his wife had executed the loan agreement and the mortgage and had paid the borrowed moneys to KSE for investment in its scheme. It was asserted that the plaintiffs by themselves or their agents failed to advise Mr Saitannis of his rights, that the purportedly independent accountant was in a position of conflict of interest, and that the investment scheme was sham and was highly speculative. This defence concluded "By reason of the said misrepresentations by or on the behalf of the Plaintiffs, the loan agreement and mortgage are voidable at the instance of the Defendant and he has avoided or hereby avoids them." 10 On 3 September 2002 the plaintiffs' solicitors sought particulars of a number of the matters raised in the defence. The particulars purportedly provided in response to this letter were sparse, to say the least. Indeed the only real piece of information which was provided was in response to the plaintiffs' request for particulars as to how it was alleged that an agency existed between the plaintiffs and the various persons named in the defence. The letter of particulars said that the agency arose by implication from the documentation which preceded the making of the loan agreement and the mortgage. I shall refer to this in more detail later. 11 On 20 September 2002 a statement of claim was lodged in this Court on behalf of Mr Saitannis and four members of his family including his wife (proceedings No 20428 of 2002). Thirteen defendants were named, all of whom had had some involvement with Mr and Mrs Saitannis's investment with KSE and/or with the loan agreement and mortgage entered into with the plaintiffs. The eleventh, twelfth and thirteenth defendants named in the proceedings were, respectively, Howard Mortgage Management Pty Limited, ("HMML") Permanent Trustee Australia Limited and Challenger Managed Investments Pty Limited. Without going into the details of the lengthy statement of claim, it raises many of the same issues against the twelfth and thirteenth defendants (being the present plaintiffs) as are contained in the defence to these proceedings. The eleventh defendant, HMML, was said to be complicit in the negligence of the twelfth and thirteenth defendants. 12 On 5 November 2002 the defendant filed a notice of motion seeking that the present proceedings be consolidated with proceedings No 20428 of 2002. Alternatively an order was sought that the two proceedings be tried at the same time and that evidence in each of them be evidence in the other. 13 On 14 November 2002 the plaintiffs filed a notice of motion seeking leave to file an amended statement of claim and seeking an order that the plaintiffs have judgment pursuant to Pt 13 r 2 of the Supreme Court Rules. An order was also sought that paragraphs 4 to 13 of the defence be struck out. These are the defences which raise the matters referred to in paragraphs 7 to 9 above. 14 The substantial issue before me is whether the defence as pleaded raises any triable issue by way of defence or cross-claim. If not, the plaintiffs are entitled to have the relevant defences struck out and judgment entered in their favour. A further question arises as to whether, if a judgment is to be entered, it should be a summary or final judgment. 15 There are a number of problems with the defences as pleaded. The first defence is misconceived and has no foundation in law. Even if the investment scheme operated by KSE was, as alleged, an illegal scheme, this could not possibly serve to render the loan agreement and mortgage void or voidable. They were two entirely separate transactions, as I shall discuss later. 16 The second defence alleges an "unconscionable dealing." The defendants' solicitor's letter of particulars dated 12 September 2002 said that it was not intended to invoke the provisions of the Contracts Review Act 1980 under this defence but to rely on a defence in equity. This defence is potentially available in appropriate cases, but as later discussion will indicate, there is no basis for its application here. 17 The third defence asserts negligence on the part of the plaintiff in breaching a statutory warranty implied pursuant to s 12 ED of the ASIC Act, namely that financial services to be rendered by a corporation to a consumer will be rendered with due care and skill. The breach of this warranty, according to the defence, constituted a failure of a condition precedent to the defendant's liability under the loan agreement and the mortgage. As such, it is asserted that the loan agreement and mortgage are voidable at the instance of Mr Saitannis. There are a number of problems with this defence as pleaded. It is doubtful that the plaintiffs were supplying a "financial product" within the meaning of s 12 BA of the ASIC Act. In any event, even if negligence were established, it would sound only in damages. It would not, as the defendant asserts, render the loan agreement or the mortgage voidable. 18 A strong argument is therefore available that as a matter of law the defence is badly pleaded and discloses no reasonable grounds of defence (with the possible exception of the defence of unconscionable dealing). But the plaintiffs rely not only on legal principles, but also on the evidential material. Essentially they contend that there is nothing to link the loan or mortgage transaction with the defendant's failed investment in KSE. Nor is there any basis for implying an agency relationship between the plaintiffs on the one hand and the various persons named in the defence on the other. 19 In order to explore this submission it is necessary to discuss the factual background of the case in a little more detail. This largely comes from documentary material provided by the plaintiffs and from affidavits sworn by the defendant and his solicitor Mr Henrick Isaac. 20 Paragraph 4 of the defence named the following persons as having procured the defendant's execution of the loan agreement and mortgage on behalf of the plaintiff: Lidia DeMarco of Parramatta Partners Pty Limited ("Parramatta Partners") David Warda of KSE Robert Barkho of KSE 21 There is no suggestion of any direct contact between the plaintiffs and KSE or its representatives. The allegation seems to be that Parramatta Partners was acting as agent for the plaintiffs and was itself in collusion with the representatives of KSE. 22 It emerges from Mr Saitannis's affidavit that he and other family members had already invested significant amounts of money in the KSE scheme before he first sought a loan from the plaintiff. At about the end of July Mr Saitannis asked his son, Louis, to speak to David Warda about taking out a loan so that he could invest more money in the KSE scheme. Louis Saitannis attended Mr Warda's office and was given a loan application form in the name of Mortgage Management Corporation Pty Limited. Mr Saitannis later completed the form, offering his property at Newtown as security for the loan. He requested a loan of $800,000 with an interest rate of 6.95 percent. The purpose of the loan was said to be "investment purposes." 23 This application was sent by Lidia DeMarco of Parramatta Partners to Colin Smith, the lending manager of HMML, by fax which bears date "31-8-01". That date must have been written in error. The faxed notation at the top of each page shows that the documents were in fact faxed from the office of Parramatta Partners on the morning of 31 July 2001. Also included in the faxed documents sent to Mr Smith were: property management statement from Ray White Coolangatta showing rent received by Mr Saitannis during December 2000 from three units in Calypso Plaza, Coolangatta. copy taxation return of Mr Saitannis for the year ended 30 June 2002 which appears to show a taxable income of $1216. copy taxation return of Mr Saitannis for the year ended 30 June 1999 showing a taxable income of $21,604. Copy bank statement of Mrs Saitannis dated 29 June 2001 showing a credit balance of $48.06. The statement shows that rent of $6,724 had been paid into Mrs Saitannis's account that month. copy of a three-year lease over the premises at 161 King Street between Mr Saitannis as lessor and one Wayne Chapman as lessee. 24 On 2 August 2001 Mr Smith on behalf of HMML wrote to Mr and Mrs Saitannis approving the loan. The letter was addressed to them "care of Lidia DeMarco, Parramatta Partners Pty Limited." Its opening words were: "In response to a loan application by your introducer, Lidia De Marco of Parramatta Partners Pty Limited on 1 August 2001 for mortgage finance, we are now pleased to confirm the following loan approval." The principal was to be $750,000 subject to a valuation of the security property. The "purpose of the loan" was specified as follows: "to raise funds for future investment ($695,000) and pre-pay interest for the term of the loan ($55,000)". The term was said to be one year, and the interest rate was to be 7.5 percent, subject to the lender's right to vary that rate. Various establishment fees, administration fees and valuation fees were to be paid by the borrowers. Under the heading "Acknowledgment of Financial" Advice the following item appeared: "In accepting this approval of mortgage finance the Borrowers undertake to receive independent advice on their ability to comply with the loan commitments, and will, prior to settlement, execute the Lender's "Acknowledgment of Financial Advice" forms. If the borrowers wished to proceed with the loan facility they were asked to sign a copy of the letter and return it to HMML. 25 On Monday 6 August 2001 this letter was faxed by Ms De Marco to David Warda with a request that he arrange for the "client" to sign and return it. This Mr and Mrs Saitannis clearly did, as the copy of the letter produced before me contains their signatures. 26 On 23 August 2001 Mr Smith on behalf of HMML wrote to Mr and Mrs Saitannis, again care of Ms DeMarco, saying that since receiving a valuation of the Newtown property the loan amount had been reduced to $613,000. 27 On 10 September 2001 the plaintiffs' solicitors, Yandell Wright Stell wrote to Mr Smith of HMML confirming their instructions that the initial special condition requiring retention of the sum of $55,000 from the loan proceeds had been waived "in view of the fact that the Borrower has supplied you with additional financial information not previously given." 28 This is the only indication in the evidence of any personal contact between Mr and Mrs Saitannis and anyone directly connected with the plaintiffs. In fact it would appear from Mr Saitannis's affidavit that it was his son Louis who spoke to Mr Smith. Louis Saitannis apparently told Mr Smith that he was organising the loan for his father who did not understand English. 29 On 27 September 2001 Mr and Mrs Saitannis each signed a declaration saying that they had received independent legal advice regarding the loan and security documents in this matter. On 28 September they each signed a document headed "Acknowledgment of Financial Advice." This document said, inter alia, "I confirm that I have received independent advice on my ability to comply with the loan commitments and I am satisfied that I will have the capacity to meet those new commitments." These documents were handed to the plaintiffs before the loan agreement was entered into. 30 On 5 October 2001 the loan agreement and mortgage were formally executed and Mr and Mrs Saitannis were given a cheque for $594,728.76. They were also given a letter setting out how the balance of the loan moneys had been disbursed. A number of payments had been made which are of no relevance here. The only payment of any significance was one to Parramatta Partners of $5,643. It was submitted on behalf of Mr Saitannis that this represented an agency fee paid by the plaintiffs, and therefore provided evidence that Parramatta Partners was the plaintiffs' agent in all matters relating to this transaction. However this submission takes no account of an earlier document, dated 3 October 2001, which listed amounts proposed to be deducted at the forthcoming settlement. Included amongst these was a payment of $5,643 to Parramatta Partners which was said to be "brokerage as per attached authority". The authority in question was dated 24 August and was signed by Mr and Mrs Saitannis. This document requested Parramatta Partners to obtain a loan of $615,000 over the security of the Newtown property for a term of one year with an indicative interest rate of 7.5 percent. It continued: "I/we shall pay P.P. a commission calculated at the rate of 1.1% including GST of the amount of loan(s), such commission to be payable on approval of the facility."