Perpetual Trustee Company Ltd v Milanex Pty Ltd (in liquidation) [2011] NSWCA 367

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Perpetual Trustee Company Ltd v Milanex Pty Ltd (in liquidation) [2011] NSWCA 367 Hearing dates: 22 and 23 August 2011 Decision date: 28 November 2011 Before: Campbell JA at [1] Macfarlan JA at [2] Young JA at [127] Decision: (1) Appeal allowed. (2) If the parties are able to agree as to the amount of interest to be awarded to Perpetual, direct that they lodge with the Court a form of consent order to enable judgment to be entered in chambers. (3) If the parties are unable to so agree, direct that: (a) within 7 days of the date of this judgment Perpetual lodge with the Court a submission as to the appropriate amount of interest; (b) Milanex respond within 7 days thereafter; and (c) Perpetual lodge any reply within a further 7 days. (4) Note that if it is necessary for the Court to determine the amount of interest to which Perpetual is entitled, the Court will do so on the basis of the written submissions that it has directed be filed. (5) Order Milanex to pay Perpetual's costs of Perpetual's cross-claim against Milanex at first instance and to pay Perpetual's costs of its claim against Mr Kotevski. (6) Order Milanex to pay Perpetual's costs of the appeal. (7) Direct that Milanex have a certificate under the Suitors' Fund Act 1951, if qualified. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TRADE AND COMMERCE - misleading and deceptive conduct - respondent mortgage broker submitted to lender's agent documents that purported to constitute loan application by borrower - lender advanced monies pursuant to loan contract and mortgage that were subsequently declared void - whether respondent represented to lender's agent that it had verified borrower's identity and that borrower had signed the loan documents - whether primary judge erred in finding that lender had not relied upon representations due to intervening conduct of its agents in not following standard procedures