Perpetual Trustees Victoria Limited v Cox and Anor [2013] NSWSC 1583

Supreme Court New South Wales

Medium Neutral Citation: Perpetual Trustees Victoria Limited v Cox and Anor [2013] NSWSC 1583 Hearing dates: 23 July 2012 to 27 July 2012, 31 August 2012; 15 November 2012 (written submissions closed 14 December 2012) Decision date: 31 October 2013 Jurisdiction: Common Law Before: Johnson J Decision: Parties to bring in short minutes to give effect to these reasons Catchwords: MORTGAGES - claim for possession of land following alleged mortgage default - defendants are husband and wife - mortgage broker acting for defendants - defendants executed mortgage and loan documentation - split-facility loan (Loans A, B and C) - Loan C remained in an undrawn account - written direction given to lender to disburse Loan C funds - funds paid into account of mortgage broker - defendants deny that direction to disburse Loan C funds executed by them or at their direction - whether husband and/or wife signed direction - whether defendants liable for disbursed Loan C funds - not established that husband or wife signed direction - whether defendants ratified the direction through their later conduct - held defendants did not ratify the direction - whether defendants were required to repay entire sum specified in mortgage (including Loan C funds) as mortgage contained a specific covenant to repay - construction of mortgage - held defendants not required to pay back entire sum - defendants not liable for Loan C funds drawn down without their authority - plaintiff's claim based upon failure to repay Loan C funds rejected Legislation Cited: Contracts Review Act 1980 Evidence Act 1995 Cases Cited: Australian Broadcasting Commission v Australasian Performing Right Association Limited [1973] HCA 36; 129 CLR 99 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187; 66 NSWLR 186 Hawksford v Hawksford [2005] NSWSC 463; 191 FLR 173 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Leybourne v Permanent Custodians Ltd [2010] NSWCA 78 Manly Council v Byrne [2004] NSWCA 123 McVeigh (Trustee of the Bankrupt Estate of Piccolo) v National Australia Bank Ltd and Anor [2000] FCA 187 Palmer v Dorman [2005] NSWCA 361 Perpetual Trustees Victoria Limited v English & Anor [2010] NSWCA 32 Perpetual Trustees Victoria Ltd v Tsai [2004] NSWSC 745; (2004) 12 BPR 22,281 Provident Capital Ltd v Printy [2008] NSWCA 131; (2008) 13 BPR 25,199 Small v Tomassetti [2001] NSWSC 1112; (2002) NSW ConvR 56-011 Van den Heuvel v Perpetual Trustees Victoria Ltd [2010] NSWCA 171; (2010) 15 BPR 28,647 Vu v New South Wales Crime Commission [2013] NSWCA 282 Yazgi v Permanent Custodians Limited [2007] NSWCA 240; (2007) NSW ConvR 56-195 Texts Cited: --- Category: Principal judgment Parties: Perpetual Trustees Victoria Limited (Plaintiff) Raymond Allan Cox (First Defendant) Susan Jane Cox (Second Defendant) Representation: Counsel: Mr S Docker (Plaintiff) Mr SV Shepherd (Defendants) Solicitors: File Number(s): 2009/294831 Publication restriction: ---