New South Wales Supreme Court 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 2008 JURISDICTION : 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. Alessio Emanuel Vella (P) Mitchell Morgan Nominees Pty Ltd (D1) Mitchell Morgan Nominees (No 2) Pty Ltd (D2) PARTIES : 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-Defendants FILE NUMBER(S) : SC 4059/06 M J Slattery QC, D A Smallbone and L M Wilson (P) B A Coles QC and G A Sirtes (D) COUNSEL : J W Stevenson SC and N Kabilafkas (2XD) R G Forster SC and P J Dowdy (3XD) P Morris (5XD3) Slater & Gordon Lawyers (P) Abbott Tout (D) SOLICITORS : 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. ******************************** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.