Claimant's Property Title Restored in NSW Supreme Court

The claimant sought a declaration that no monies were owed and that their property title was free of encumbrances. The court granted the declaration and restored the title, dismissing some claims while allowing others.

New South Wales Supreme Court

CITATION : [NAME] v [COMPANY] [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 : [NAME] 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 [NAME] dismissed. Second cross-claim against [NAME] suceeds as to 12.5% of their loss. Third cross-claim against the ANZ Bank dismissed. Fifth cross-claim by [NAME] against [NAME] succeeds for the reasons given in 4122/06. [NAME] should indemnify [NAME] against their liability to Mitchell Morgan. Other orders made in associated litigation.

[NAME] (P) [COMPANY] (D1) [NAME] (No 2) [COMPANY] (D2) PARTIES : [NAME] (Cross-Defendant in Second Cross-Claim) Australia and New Zealand Banking Group Limited (Cross-Defendant in Third Cross-Claim) [NAME] (Third Cross-Defendant in Fifth Cross-Claim) No appearance of other Cross-Defendants

FILE NUMBER(S) : SC 4059/06

[NAME] and [NAME] (P) [NAME] QC and [NAME] (D) COUNSEL : [redacted] [NAME] SC and [NAME] (3XD) P [NAME] (5XD3)

Slater & Gordon Lawyers (P) [NAME] (D) SOLICITORS : [redacted] [NAME] (3XD) [NAME] (5XD3)

IN THE SUPREME COURT OF NEW SOUTH WALES [NAME] in EQ

Wednesday 28 May 2008

4059/06 – [NAME] v [COMPANY]

JUDGMENT 1 HIS HONOUR: These proceedings were heard together with No 4122/06 and four other matters. 2 The plaintiff, [NAME], 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. [NAME] and [NAME] appeared for the plaintiff. [NAME] and [NAME] appeared for Mitchell Morgan. [NAME] and [NAME] appeared for [NAME]. [NAME] and [NAME] appeared for the ANZ Bank, and [NAME] for [NAME]. 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, [NAME], alleging negligent performance of the work that they were to do under the retainer from Mitchell Morgan. [NAME]'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, [NAME] and [NAME]. 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 [NAME] is against [NAME], solicitor, [NAME] and [NAME]. [NAME] 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 [NAME] 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 [NAME] 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 [NAME] succeeds as to 12.5% of its loss. 10 The fifth cross-claim by [NAME] against [NAME] succeeds for the reasons given in 4122/06 and [NAME] should indemnify [NAME] against their liability to Mitchell Morgan.

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