Bendigo and Adelaide Bank Ltd v Howard [2018] NSWSC 383

Supreme Court New South Wales

Medium Neutral Citation: Bendigo and Adelaide Bank Ltd v Howard [2018] NSWSC 383 Hearing dates: 1 March 2018 Date of orders: 28 March 2018 Decision date: 28 March 2018 Jurisdiction: Common Law Before: Davies J Decision: (1) Summons dismissed.

(2) The plaintiff is to pay the defendant's costs. Catchwords: APPEALS - appeals to the Court – appeal from the Local Court – appeal as of right – whether grounds of appeal from decision of magistrate disclosed an error of law – plaintiff did not seek leave to appeal on grounds disclosing mixed questions of fact and law – Investment scheme – nomination of lender to fund investment – whether defendant nominated lender who purported to assign loan ultimately to plaintiff - whether the lender nominated by the defendant in relevant documents was a misnomer – whether a question of law – plaintiff put to proof of advance of funds to defendant – whether a finding by magistrate that no funds were advanced was a question of law – whether inferences from documents concerning advance of funds and assignment was a question of law – whether findings that loan not assigned was a question of law

CONTRACTS – rectification – intention ––whether nomination of lender warranted rectification by construction as a result of a misnomer - not plain to all concerned with the relevant document that the defendant actually intended to borrow from the lender subsequently nominated by his duly appointed attorney

CONTRACTS – construction – interpretation – whether objective intention of defendant as to identity of lender was uncertain – whether uncertainty could be overcome by a valid exercise of the power of an attorney appointed by the defendant – lender as principal was fixed with knowledge of agent that it lacked power under power of attorney to nominate the lender Legislation Cited: Conveyancing Act 1912 (NSW) s 12 Corporations Act 2001 (Cth) s 286 Local Court Act 2007 (NSW) ss 39, 40 Uniform Civil Procedure Rules 2005 (NSW) r 50.11 Cases Cited: ABL Custodian Services Pty Ltd v Kunz [2016] SADC 145 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Australian Gas Light Co v The Valuer-General (1940) 40 SR (NSW) 126 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Bonette v Woolworths Limited (1937) SR (NSW) 142 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; [2012] HCA 7 Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155 Holloway v McFeeters (1956) 94 CLR 470 Hope v Bathurst City Council (1980) 144 CLR 1 International Leasing Corporation Ltd v Aiken [1967] 2 NSWR 427 Jennings v Credit Corp Australia Pty Ltd (2000) 48 NSWLR 709; [2000] NSWSC 210 Jones v Canavan [1972] 2 NSWLR 236 Long Leys Co Pty Ltd v Silkdale Pty Ltd (1991) 5 BPR 11,512 New South Wales Land and Housing Corporation v Australia and New Zealand Banking Group Limited [2015] NSWSC 176 Prieston v Warwick John Williams Pty Ltd [2017] NSWSC 1577 R L & D Investments P/L v Bisby & Anor [2002] NSWSC 1082; (2002) 37 In MVR 479 Russo v Aiello (2003) 215 CLR 643; [2003] HCA 53 Simic v Land and Housing Corporation (NSW) [2015] NSWCA 413 Thornley v Tilley (1925) 36 CLR 1 Westgold Resources NL v St George Bank Limited (1998) 29 ACSR 396 Westport Insurance Corporation v Gordian Runoff Limited (2011) 244 CLR 239; [2011] HCA 37 Texts Cited: Nil Category: Principal judgment Parties: Bendigo and Adelaide Bank Ltd (Plaintiff) Michael Richard Howard (Defendant) Representation: Counsel: N Cotman SC & R Kipps (Plaintiff) S Epstein SC & P Horobin (Defendant)