Australia and New Zealand Banking Group Limited v Londish [2013] NSWSC 1423

Supreme Court New South Wales

Medium Neutral Citation: Australia and New Zealand Banking Group Limited v Londish [2013] NSWSC 1423 Hearing dates: 29 April 2013 Decision date: 26 September 2013 Jurisdiction: Common Law Before: Hall J Decision: (1) Leave granted to the plaintiff to join Perpetual Trustee Company Limited and Fidante Partners Limited to these proceedings. (2) Leave granted to the plaintiff to file the proposed Further Amended Statement of Claim in the form annexed to the plaintiff's Notice of Motion filed on 11 March 2013. (3) Notice of Motion filed on behalf of Perpetual Trustee Company Limited and Fidante Partners Limited on 2 April 2013, insofar as the relief sought in prayers 4-7 inclusive, listed for mention on the next directions hearing, namely at 9.15am on 2 October 2013. (4) Proceedings listed for directions at 9.15am on 2 October 2013. Catchwords: MORTGAGES - Plaintiff seeks in substantive proceedings judgment for possession and amount outstanding under a loan to defendant - loan funds used to discharge prior loan defendant had with prior lender - defendant alleges loan and mortgage with plaintiff unjust and unconscionable - plaintiff seeks to be subrogated to prior lender's rights under prior loan and mortgage - defendant pleads subrogation unavailable because prior loan and mortgage also unjust and unconscionable - present application by plaintiff to file and serve further amended statement of claim - further amended statement of claim joins prior lender as defendants in the proceedings claiming restitution of monies advanced to discharge prior loan and mortgage - plaintiff pleads that its mistake as to enforceability of prior loan and mortgage gives rise to claim in restitution - prior lender opposes application -whether prior lender correct defendant in restitution claim by plaintiff - whether defences available to prior lender - whether plaintiff's restitution claim should, in effect, be summarily dismissed or struck out - not appropriate for summary dismissal or strike out - application of restitution principles ought be made at final hearing where findings of fact can also be made Legislation Cited: Corporations Law (Cth) Contracts Review Act 1980 Supreme Court Act 1970 Uniform Civil Procedure Rules 2005, r 6.19 Cases Cited: Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662 Bank of Western Australia Ltd v Tannous [2010] NSWSC 1319 Barclays Bank Ltd v WJ Simms Son & Cooke (Southern) Ltd [1980] QB 677 Bracks v Smyth-Kirk [2009] NSWCA 401 CGU Insurance Ltd v Bazem Pty Ltd [2011] NSWCA 81 Collier v Morlend Finance Corporation (Victoria) Pty Ltd (1989) 6 BPR 13,337; (1989) NSW ConvR 55-473 David Securities Pty Limited v Commonwealth Bank of Australia (1992) 175 CLR 353 Equuscorp Pty Ltd v Haxton (2012) 286 ALR 12 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Hill Industries Ltd v Australian Financial Services and Leasing Pty Ltd (2012) 295 ALR 147 Ideas Plus Investments Ltd v National Australia Bank Ltd (2006) 32 WAR 467; [2006] WASCA 215 Owners of the Ship "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404 Payne v Young (1980) 145 CLR 609 Re Emanuel (No 14) Pty Ltd (in liq) (1997) 24 ACSR 292 Rover International Ltd Cannon Film Ltd [1989] 3 All ER 423 Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516 Stroud v Lawson [1898] 2 QB 44 Tepko Pty Limited v Water Board (2001) CLR 1 Trust Co Fiduciary Services Limited v Hassarati (No 2) [2011] NSWSC 1396 Category: Interlocutory applications Parties: Australia and New Zealand Banking Group Limited (Applicant) Vicki Christine Londish (Respondent) Representation: Counsel: J Stoljar SC (Applicant) G Drew (Respondent) V Bedrossian (Perpetual Trustee Company Limited and Fidante Partners Limited) Solicitors: Gadens Lawyers (Applicant) JSA Legal (Respondent) Norton Rose Australia (Perpetual Trustee Company Limited and Fidante Partners Limited) File Number(s): 2012/60587