Vella v Australia and New Zealand Banking Group Limited [2008] NSWSC 513

New South Wales Supreme Court

CITATION : Vella v Australia and New Zealand Banking Group Limited [2008] NSWSC 513

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 : For the reasons given in 4122/06, no orders need be made in these proceedings other than plaintiff recovers a moiety of the monies paid out of the joint account without his authority, with the Bank having recourse against one person who received part of the funds.

Alessio Emanuel Vella (P) Australia and New Zealand Banking Group Limited (D1) PARTIES : Hassam Annous (First Cross-Defendant in Second Cross-Claim) Vanessa Tsokos (Third Cross-Defendant in Second Cross-Claim) No appearance of other Cross-Defendants

FILE NUMBER(S) : SC 3957/06

M J Slattery QC, D A Smallbone and L M Wilson (P) COUNSEL : R G Forster SC and P J Dowdy (D1) S Burchett (2XD1) R D Marshall and C H Cassimatis (2XD3)

Slater & Gordon Lawyers (P) SOLICITORS : Henry Davis York (D1) Aston Reid Lawyers (2XD1) Ledlin Partners (2XD3)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG CJ in EQ

Wednesday 28 May 2008

3957/06 – VELLA v ANZ BANKING GROUP LTD JUDGMENT 1 HIS HONOUR: These proceedings were heard together with 4122/06 and four other matters. 2 The plaintiff, Alessio Vella, claims $2,417,372.97 from the first defendant, the ANZ Bank, for wrongly debiting his account with that amount. The second defendant is Antonio Caradonna, who was a joint holder of the account into which the money was paid. The first cross-claim is by the ANZ Bank against Mr Caradonna for the same amount. 3 Mr Caradonna is now bankrupt; an order was made under s 58(3) of the Bankruptcy Act 1966 giving leave for these proceedings to continue up until judgment. Mr Caradonna took no part in the hearing. The plaintiff seeks judgment against him. 4 The second cross-claim in this proceedings is by the ANZ Bank against five recipients of the money that he paid out, namely, Hassam Annous against whom $550,000 is claimed, Rimridge Pty Ltd against whom $400,000 is claimed, Vanessas Tsokos against whom $400,000 is claimed, Dux Enterprises Pty Ltd against whom $55,000 is claimed and Mikhael Tannous against whom $45,000 is claimed. Only Mr Annous and Mrs Tsokos have filed defences. 5 Mr Slattery QC, Mr Smallbone and Ms Wilson appeared for the plaintiff, Mr R Forster SC and Mr Dowdy appeared for the ANZ Bank, Mr S Burchett for Mr Annous and Mr R D Marshall and Mr C H Cassimatis for Mrs Tsokos. 6 For the reasons given in 4122/06, the plaintiff can only succeed against the Bank to the extent that the plaintiff does not recover his land against Mitchell Morgan and Permanent. 7 Accordingly, there should be no order made in these proceedings, other than in respect of the plaintiff's claim against the Bank for a moiety of the monies paid out of the joint account. The reasons for this may be found in section 7 of the principal judgment. 8 For the reasons set out in section 12 of the principal judgment, the Bank is entitled to judgment against Rimridge for $100,000 or that sum as adjusted in accordance with those reasons. 9 I would believe that when short minutes are brought in for proceedings 4122/06 these proceedings should simply be dismissed with costs in these proceedings to be costs in 4122/06, though persons who were not parties to 4122/06 may need to have their situation specifically considered.