Solicitors:
Tomaras Lawyers - First Plaintiff / First Cross-Defendant, Second Plaintiff / Second Cross-Defendant, Fourth Cross-Defendant and Fifth Cross-Defendant
Norton Rose Fulbright Australia - Defendant/Cross Claimant
Kekatos Lawyers - Third Cross Defendant
File Number(s): 2014/86502
[2]
what this case is about
HIS HONOUR: Carmelo Adriano (known as Adrian) Mastronardo (the plaintiff / first cross-defendant) is an experienced property developer. He and Claudia Alejandra Mastronardo (the second plaintiff / second cross-defendant) are married. Antonio Mastronardo (the third cross-defendant) is Adrian's father. I shall refer to them, respectively, as Adrian, Claudia and Antonio, no disrespect intended. Unless the context requires otherwise, where I refer to the plaintiffs I intend to refer to Adrian and Claudia together.
Adrian and Claudia owe the defendant / cross-claimant, the Commonwealth Bank of Australia trading as BankWest (the Bank) significant sums of money, in their own right as borrowers under a facility which has been referred to in these proceedings as the Mastronardo facility, and as guarantors of the obligations to the Bank of Remo Corporation Pty Ltd (in liquidation) (Remo Corporation) under a series of facilities which have been referred to in these proceedings as the Remo facility.
Antonio is a guarantor to the Bank of Remo Corporation's obligations under the Remo facility.
Via San Antonio Pty Ltd (the fourth cross-defendant) (VSA) is a guarantor to the Bank of the Mastronardo facility and the Remo facility. VSA owns Lot 3 on Registered Plan 72801, County of Cook, Parish of Barns, Queensland, being the whole of the land contained in Title Reference 14707044 and known as Herbert Hall Road, Coonarr, Queensland. I shall refer to this property as Coonarr Beach. Coonarr Beach is mortgaged to the Bank as security for VSA's obligations to the Bank.
AM Property Investments Pty Ltd (the fifth cross-defendant) (AM) is the sole shareholder of Remo Corporation and a guarantor to the Bank of Remo Corporation's obligations under the Remo facility.
Adrian and Claudia live at 8 Pile St, Gladesville. They have been there since June 2000. In about May 2007, they bought the adjacent property at 8A Pile St, which gives them access to the waterfront. By the Mastronardo facility, they borrowed $3,000,000 from the Bank to buy 8A Pile St. I will refer to 8 and 8A Pile St together as Pile St.
Antonio immigrated to this country from Italy in 1960. He first worked as a bricklayer and later went on to establish his own building business, under the name "Remo". He engaged in a number of building and development enterprises using various corporate entities. Although English is not his first language, he is an astute and intelligent man, and has been successful in business in this country.
For many years, Adrian worked with, or perhaps more accurately, for, his father Antonio. In 2005, Adrian told Antonio that he wanted a share of the Remo business. He told him that if he, Antonio, was not prepared to give him one, he would leave and start out on his own. Remo Corporation was formed in 2005. Adrian became a director, together with Antonio. In May 2008, Antonio resigned, and in July 2009, they agreed to separate their interests. There was significant tension between them. They did not speak to each other for a long time. In August 2009, Antonio and Adrian came to an understanding in principle as to how they would separate their interests and who, as between them, would be liable for various liabilities to the Bank. This was discussed with the Bank, but the Bank never agreed to disaggregation. As at 31 August 2009, Remo Corporation had negative cash flow. It also had significant tax arrears. It went into liquidation in 2013.
Adrian carries on his own property development business under the name of Veritas Group (Veritas).
During the period from November 2006 to March 2010, Remo Corporation borrowed significant sums of money from the Bank under the Remo facility. Adrian, Claudia and Antonio guaranteed Remo Corporation's obligations to the Bank. Claudia's liability under her guarantee is limited to her interest in Pile St.
Two components of the Remo facility expired on 31 December 2009. On 12 March 2010, as a result of a decision made by Martin Lee, the Bank's Senior Manager - Business Credit, the Bank took the position that it would extend the expired facilities until 31 May 2010 but not beyond that, and that Remo Corporation was to refinance all of its loan facilities by 31 May 2010, even though a component of the Remo facility was only to expire on 31 December 2012.
In mid-2010, various propositions were put by Adrian to the Bank for the extrication of Pile St and Coonarr Beach from its security, but none of these proceeded. The Bank's position was that the entirety of the Remo facility had to be refinanced. Remo Corporation fell into default, as did Adrian and Claudia on the Mastronardo facility.
The Remo facility contained a provision, the effect of which (albeit expressed in different terms in different instruments over time) was that the Bank would release Pile St as support for the Remo facility, conditional upon there being no event of default, and the resultant Loan to Value Ratio (LVR) after the release of the properties not exceeding 70%. This was referred to in the proceedings as the release provision.
Adrian and Claudia assert that the Bank repudiated the release provision. They assert that they suffered damage as a consequence.
Additionally, and in the alternative, they say that the Bank's conduct was unconscionable in contravention of s 12CB(1) of the Australian Securities and Investments Commission Act 2001 (Cth) (the ASIC Act), which provides, relevantly, that a person must not, in trade or commerce, in connection with the supply or possible supply of financial services to a person, engage in conduct that is, in all the circumstances, unconscionable.
Section 12GF(1) of the ASIC Act provides that a person who suffers loss or damage by conduct of another person that contravenes a provision of Subdivision C (sections 12CA to 12CC) or Subdivision D (sections 12DA to 12DN) may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.
The Bank cross-claims for money judgments and for orders for possession of Pile St and Coonarr Beach.
No submissions were put on behalf of VSA or AM.
Antonio's defence to the claim on his guarantee is that the Bank orally agreed to release him. He made no submissions on quantum.
As at 17 July 2017, the amount owing to the Bank under the Mastronardo facility is $8,308,208.16.
As at 17 July 2017, the amount owing to the Bank under the Remo facility is $9,938,954.27.
In final submissions, Adrian and Claudia accepted that the maximum quantum of their damages is $7,277,804.82. Assuming an equitable set off, the Bank is entitled to a verdict of not less than $10,969,357.61. Orders for possession of Pile St and Coonarr Beach are irresistible.
[3]
The Remo facility and the Mastronardo facility
An understanding of this controversy will, I think, best be facilitated by setting out the history of the facilities to provide the context for the dispute. I will deal first with Adrian and Claudia's damages case, and then with Antonio's defence to the claim on his guarantee.
The Remo facility was established by Offer Letter dated 6 November 2006, accepted in writing by Remo Corporation on 16 November 2006. The Bank agreed to advance $6,600,000.
The Remo facility incorporates the terms of the Bank's General Terms for Business Lending dated September 2006. The General Terms make provision (cl 18.2) for the Bank to give a certificate about the amount payable which is sufficient evidence of it unless it is proved to be incorrect.
The Remo facility was taken out to enable Remo Corporation to refinance existing borrowings of $4,300,000 (with the National Australia Bank) and to provide $2,300,000 for working capital and investment purposes.
Conditions Precedent to the Remo facility included the provision of personal guarantees by Antonio, Adrian and VSA, and mortgages over 8 Pile St (owned by Adrian and Claudia), Coonarr Beach (owned by VSA), 22 Spencer St, Five Dock (owned by Bertino Pty Ltd, one of Antonio's companies) and 10 Regatta Rd, Five Dock (owned by Antonio).
Guarantees and mortgages were executed on 12 January 2007. Adrian signed a guarantee on behalf of Antonio under a registered general power of attorney given by him to Adrian on 18 December 2006. Antonio does not challenge Adrian's authority.
The Remo facility was varied by Offer Letter dated 6 February 2007 to reduce it to $6,070,000. This component of the Remo facility has throughout been referred to as the first commercial advance. The reduction reflected a reduced valuation of Coonarr Beach. The guarantees given by Antonio, Adrian and Claudia were limited to the reduced amount.
On 8 February 2007, Claudia signed a declaration that she had received independent legal advice regarding her mortgage of 8 Pile St and the guarantee given by her. The declaration was made before Joseph Lombardo, solicitor.
The Remo facility was varied again by Offer Letter dated 20 April 2007 so as to increase it by $150,000 to $6,220,000. The increase was to enable Remo Corporation to obtain a bank guarantee for a court case.
Adrian, Claudia and Antonio signed statutory declarations that they had been given the opportunity to obtain independent legal and financial advice about the loan and security documents, but had declined to do so.
The Mastronardo facility was established by Offer Letter dated 16 May 2007, accepted in writing by Adrian and Claudia on about 21 May 2007. The Bank agreed to advance, and did advance, $3,000,000 to Adrian and Claudia on the security, amongst others, of a mortgage over Pile St. The Mastronardo facility also incorporates the terms of the Bank's General Terms for Business Lending, dated September 2006.
The Mastronardo facility was taken out to enable them to buy 8A Pile St.
At the same time, the Remo facility was varied to include 8A Pile St as security. On 22 May 2007 Adrian and Claudia mortgaged 8A Pile St to the Bank. Claudia's liability under her guarantee for the Remo facility was increased to take into account her interest in 8A Pile St. On 13 December 2007, Claudia signed a guarantee in favour of the Bank which records that the maximum amount the Bank can recover from her under the guarantee is the amount it obtains from enforcing its rights in connection with Pile St.
VSA is a guarantor of Adrian and Claudia's obligations under the Mastronardo facility under a written guarantee dated 22 May 2007.
By Offer Letter dated 6 November 2007, accepted on 9 November 2007, the Remo facility was increased by an additional commercial advance facility of $5,000,000, which has been throughout referred to as the second commercial advance, plus an overdraft of $1,500,000. The increase brought the total facility limit to $12,720,000, comprising the first commercial advance of $6,070,000, the bank guarantee amount of $150,000, the second commercial advance of $5,000,000 and the overdraft of $1,500,000.
On 30 November 2007, the Mastronardo facility expired. On 19 December 2007, it was extended to 30 November 2010.
By Offer Letter dated 1 April 2008, accepted on 10 April 2008, the total Remo facility limit was reduced to $11,640,000 by eliminating the bank guarantee, and reducing the second commercial advance to $4,070,000.
By Offer Letter dated 5 August 2009, accepted on 14 August 2009, the Remo facility was reduced to $5,247,000, comprising the first commercial advance which was reduced to $3,302,000 (and which was extended to 31 December 2012), the second commercial advance which was reduced to $645,000 and the overdraft which was reduced to $1,300,000 (and both of which were extended to 30 September 2009).
By Offer Letter dated 12 January 2010, accepted on 29 January 2010, the second commercial advance and the overdraft were extended to 28 February 2010.
On 28 February 2010, the second commercial advance expired.
By Offer Letter dated 29 March 2010, the second commercial advance ($645,000) and the overdraft ($1,300,000) were extended to 31 May 2010. The first commercial advance ($3,302,000) was due to expire on 31 December 2012.
There was no further extension of the second commercial advance or the overdraft, they were not discharged on 31 May 2010, and they lapsed into default.
On 13 April 2010 the Queensland State Penalties Enforcement Registry issued an Enforcement Warrant Seizure and Sale of Property in respect of Coonarr Beach for $1,339. On 14 October 2010, that body issued a request to register a writ/warrant of execution in respect of Coonarr Beach. The Bank's General Terms for Lending 2006 (cl 16.1) which were incorporated into the Remo facility, contain provisions which make it an event of default if distress is levied on the property of a guarantor. These occurrences were thus events of default under the Remo facility. They were also an event of default under the Memorandum of Common Provisions (cl 1.1(p),(r)) which were incorporated into the Coonarr Beach mortgage, which provided that an event of default under any other facility document was an event of default under that mortgage.
No interest on the first commercial advance has been paid since September 2010.
Adrian and Claudia last paid interest on the Mastronardo facility in May 2011. The principal remains outstanding.
Interest on the second commercial advance was last paid in May 2011.
As will more fully be dealt with below, the properties at 22 Spencer St and 10 Regatta Rd were sold on 14 October 2011 and the Bank received the proceeds of $1,950,632 in reduction of the Remo facility.
Apart from this, no principal of the Remo facility has been repaid.
Remo Corporation was placed into liquidation on 12 December 2013.
[4]
The release provision
A Bank internal Credit Risk Submission dated 18 October 2007 records that the facilities for Remo Corporation ($6,220,000) were secured by Pile St, but that subject to there being no events of default, and if the LVR for Remo Corporation's facilities did not exceed 70%, Remo Corporation had requested the collateral support from Pile St be released.
The first emanation of the release provision appears in the Terms and Conditions of the 6 November 2007 Offer Letter.
The release provision appears in the 1 April 2008 Offer Letter in the following terms:
Release of the security at Pile St, Gladesville as support to the Remo Corporation facilities is conditional on there being no event of default and the resultant LVR after the release of the properties not exceeding 70% post sale of Gladesville properties.
The Release provision appears in the 5 August 2009 Offer Letter in the same terms.
The 29 March 2010 Offer Letter has the release provision in the following terms:
The release of the security properties at Pile St, Gladesville, NSW as security for the loan facilities is conditional of there being no event of default and the LVR following the release of the properties not exceeding 70%.
[5]
Pile St
On 8 August 2009, Antonio and Adrian signed a document entitled "Separation - Terms Sheet" setting out an in principle agreement between them for separation. At that time, Antonio and Adrian through various corporate entities were involved in development projects in West Ryde and Queens Rd, Five Dock. The in principle agreement, which is expressed in broad terms, contemplated Adrian taking responsibility for a loan (from a different financier) on West Ryde and $6,300,000 in respect of loans related to Coonarr Beach and Pile St.
From June 2006 to March 2010, Malcolm Ng (Ng) was the Bank's Director - Property Finance NSW.
On 23 February 2010, Ng met with Adrian, Tony Lo Surdo (Antonio's accountant), Ian Mirels (Mirels) (General Manager of Veritas), and James Porter of the Bank's Property Division. Antonio may have been present as well. After the meeting, Ng sent the following email to Antonio, Lo Surdo and Mirels:
I refer to our meeting today at Bankwest's office and attach a schedule summarising the Remo Group's present loan facilities and securities with the Bank. As well I have outlined the proposed split up of the loan facilities and security assets between Remo/Antonio and Veritas/Adrian.
(See attached file; LVR Before & Current Analysis 20100223.xls)
As discussed, the proposed splitting up of the loan facilities and security assets is not a straightforward exercise. The proposition needs to take into account, amongst other things:
the different types of security assets and the reliance/weighting the Bank would place on the individual assets i.e. the vacant land at Coonarr Beach is not a preferred security asset for the Bank and a lower advance ratio is likely to be applied;
cashflow streams to support the respective interest servicing need to be demonstrated - on the information provided to date, interest servicing is not fully evident.
As mentioned, if the loan restructuring is approved/proceeds, there will be a full review of the existing loan pricing and an increase in interest margin is likely.
To assist the Bank to consider the proposed loan restructuring, we will require up to date details of the Group's business activities, cashflow projections and development projects (including 49 & 97 Queens Road and West Ryde development).
As discussed, can you please provide lease and sales details with regards to the 49 & 97 Queens Road developments and the status of CBA's loan facilities.
(The schedule referred to in the first paragraph of the email was included.)
A Bank internal Credit Risk Assessment dated 4 March 2010, refers to Remo Corporation's request for a further three month extension to the second commercial advance and overdraft to enable them to finalise their plans to break up / allocate the assets / liabilities of the Group between the principals (i.e. Antonio and Adrian). The document makes reference to the fact that "the sponsors" had not yet agreed to a break-up of the facility / security position. The document recommends approval to extend the second commercial advance and the overdraft for a further two months to 31 May 2010.
A Bank internal document described as BankWest Business Credit (Level 2) reveals that on 10 March 2010 Martin Lee, to whom the application for extension was apparently referred, considered that "the Group" remained in a "precarious financial position" and that whilst they had "met commitments to date", the Bank was "uncomfortable with the ongoing position" and "should ask the client's (sic) to refinance". The document states "we also note that pricing is not appropriate for the risk on the $3.000m & $3.302m debt tranches."
On 12 March 2010, acting in accordance with these instructions, Ng wrote to Antonio and Adrian as follows:
Further to my below email, we advise that we have obtained a further temporary extension of the Remo Corporation Pty Ltd's expired facilities until 31/5/10. The relevant loan documentation are (sic)being prepared and will be forwarded to you shortly.
In conjunction with the temporary extension, please be advised that the Bank is not prepared to consider any further extensions and request that you arrange the refinancing of all the Remo Group loan facilities by 31 May 2010.
There followed the Offer Letter dated 29 March 2010 granting the extension to 31 May 2010. The Offer Letter was signed on behalf of Remo Corporation and other entities by Antonio.
A course of dealings, which included what is described below, ensued.
On 7 April 2010, Antonio sent the following letter to Scott Shying (Shying), the Bank's Director - Property Finance NSW:
Please be advised that w.e.f. 1st of September 2009 me and my sonCarmelo Adrian Mastronardo agreed in good friendly relation to managetheir respective business, so according the Bank West loans were requiredto be split. To discuss the matter in greater details I had a meeting withMalcolm Ng in February 2010.
In the meeting it was discussed that I would take over the loan of $2M andthe properties attached to it would be 10 Regatta Road, Five Dock and 22Spensor (sic) Street, Five Dock, the balance of loan would belong to Adrian'sGroup. For your ready reference please find attached the working sheet ofthat meeting.
I really could not understand that why Bank West called for all the money by31-05-2010? We had a long relationship with Bank West and neverdefaulted in paying the interest. We were among one of the repudiatedcustomer of Bank West and always all our loan application were honoured.
The Commercial Bill for $3.3 Million would be expiring in December 2012,so per the original loan agreement we would like to sustain that commercialbill.
Please be further advised that at the movement (sic) 22 Spensor (sic) Street is leased and I am under negotiation with the tenant if they are interest in buying the property.
On 8 April 2010, Shying wrote to Rajeev Sharma (Sharma), who worked for Remo Corporation (i.e. Antonio's side) and Mirels (i.e. Adrian's side) providing a copy of the 29 March 2010 Offer Letter and stating that he assumed that both parties were looking at their options to refinance their respective debts at the end of the term, and that when the facility expired "penalty rate" would apply.
On 8 April 2010, Antonio wrote the following letter to Adrian:
With reference to our telephonic conversation yesterday evening please be advised that I have send (sic) a letter to Scott Shying requesting that we would like to retain the Commercial Bill of $3.3 M(Copy attached).
Please note that aforesaid facility expires on 31-12-2012 and has an interest of only 0.95% on the top of one month BBSY which work outs to approx. 5.25%pa at the moment, where as overdraft of $1.3 M has interest of 9.65%pa and other commercial bill of $650K has already expired.
I think we should strongly pursue with the Bank West to retain the $3.3 M Comm. Bill, it does not matter if I keep it or you have it, at least it would be in house and we would be saving big amount of interest. So we should approach the bank together.
Like I discussed with you over the phone yesterday evening can you please pay your share of interest for April and May 2010 and I would pay my share and later on we would discuss about the Interest from 1-09-2009 till 31-03-2010. Can you please organize a cheque in favour of Remo Corporation for $17,512 for April 2012 interest? The said amount is calculated as follows:
CommBill / overdraft Annual Interest Rate Weighted Average
$3,302,000 5.25% 3.313%
$1,280,500 9.65% 2.362%
$650,000 6.65% 0.826%
[6]
Distribution of Interest:-
Loan Annual Interest Monthly Interest
My Share $2,000,000 $130,020 $10,835
Your Share $3,232,500 $210,145 $17,512
[7]
Also please ask Ian to organize a cheque for $6,930.94 as per the attached email from Scott,
On 13 April 2010, the Queensland Government issued the Enforcement Warrant with respect to Coonarr Beach.
On 14 May 2010, Adrian and Mirels discussed with Shying a refinance proposal which Mirels set out in an email later that day as follows:
As requested and as discussed this morning the proposal for retirement of debt (subject to Antonio Mastronardo's agreement) is as follows:
Amount owing as at May 2010 $8,252,000
Less:
Adrian Mastronardo
● Refinance Pile St $4,500,000 (Property Value = $6.3m = LVR 71%)
Antonio Mastronardo
● Sale of 10 Regatta Rd say $1,500,000 (to be confirmed by Antonio)
● Sale of 22 Spencer St say $1,500,000 (to be confirmed by Antonio)
Add: Retention of Sale Proceeds $650,000
Residual Debt $1,402,000 (security is Coonarr Beach = Property Value $2.8m = LVR 50%)
Shying responded to Mirels, Antonio, Adrian and Sharma on the same day as follows:
I will endeavour arrange (sic) a meeting with CAM (Credit and Asset Management).
1 of your facilities will expire on the 15th of May.
As credit are not willing to extend the term penalty interest will apply.
The current penalty rate is 18.6%.
On 17 May 2010 (at 8.31am), Adrian wrote as follows to Shying:
Thank you for taking the time to meet us today.
It is apparent in your email Bankwest is not willing to honour their agreement.
I see no reason to meet your colleges (sic)
I get the message.
So I will now organise discharge of my loans
8 and 8a Piles (sic) St Gladesville and Coonarr Beach Queensland
I disappointed with (sic) the Banks decision and banks position as we (myself and my father) never defaulted on any payment or obligation
To that end
Please be advise (sic) that I will endeavour to arrange settlement of the loans asap
Also I would like to propose by the end of next week I confirm my time line for this to occur. In the mean time please feel free to call to discuss further if you feel you need to do so.
Shying, who swore an affidavit in the proceedings, disputes that he met with Adrian on 17 May 2010. He was not cross-examined. He says that he would not have met with Adrian before 8.31am.
On 17 May 2010, Antonio wrote to Shying informing him that 22 Spencer St and 10 Regatta Rd had been placed on the market and confirming that Remo Corporation wished to retain the first commercial advance of $3,300,000 of December 2012 or earlier dates subject to sale of properties.
On 19 May 2010, Shying reported to Peter Ogilvy, the Bank's State Manager - Credit Asset Management, that the "Borrower has advised that they wish to restructure their facilities…" by selling properties at Five Dock and until sold, Antonio wished to "split the debt to have a $1,947k facility secured by those properties" and Adrian wished to "refinance the Gladesville properties into a home loan of circa $4,500k and retain the Coonarr Beach property". He reported that Adrian had strongly advised that Coonarr Beach was not for sale and that the Borrower had been advised that the Bank "wishes for them to refinance their facilities"
On 20 May 2010, Mirels wrote to Shying as follows:
Please can you confirm the following:
If Adrian repays:
1. $4.5m for 8 Pile St and 8a Pile St
and
2. $1.7m for Coonarr Beach
will Credit release the above mentioned properties from the current cross securitised pool of securities.
Please note due to timing it will not be possible to repay both the $4.5m and $1.7m at the exact same time. So first it will be $4.5m and thereafter the $1.7m.
On 24 May 2010, Shying emailed Mirels to tell him that he had passed the email on to the Credit and Asset Management Team and would get back with a response as soon as possible.
On about 25 May 2010, Shying transferred conduct of the file to Ms Elise Cockerill, the Bank's Director - Property Risk Property Finance (Cockerill) and asked her to attend a meeting with the directors / financial controllers.
On 28 May 2010, Mirels emailed Adrian and Shying as follows:
Understand you have not granted approval. However, we have a financier requesting this letter as a condition to moving things forward.
Understand the meeting is important to you, which Adrian and Antonio have agreed, however we are trying to get the refinance sorted.
A meeting was arranged to be held on 31 May 2010, at the offices of the Veritas Group in Phillip St, Sydney. Adrian says Mirels was present. Cockerill says she believes Sharma, Antonio, Shying and another Bank officer were also present.
Adrian's version of the discussion at the meeting is:
Cockerill: You need to refinance all of the properties.
Adrian: Coonarr won't be easy to refinance. In fact, it's impossible to refinance a property like Coonarr Beach in a GFC. We've got a deal on foot and a facility expires in late 2012. It's much harder for us to go to another bank. You can hold Coonarr with a LVR of 50%. What's the problem with that?
Cockerill: The Bank wants all of the facilities repaid which it has the right to do. We're not interested in holding Coonarr Beach - that's the one we don't want. We own more property in Queensland than anyone else.
Adrian: The Pile Street properties are different and can be refinanced. As long as the facilities are at 70%, you should be able to release them.
Cockerill: No - we don't care what the agreement says. You need to get refinanced.
Cockerill's version is:
Cockerill: How do you propose to repay the outstanding debt?
Adrian: We are in the process of refinancing. I do not want to sell the properties. It takes time for the banks to approve finance. We are talking to a number of banks and are in the process of obtaining finance. We expect to receive offer letters imminently. The difficulty is around Coonarr Beach as there is no interest from the banks. We want the Bank to continue to fund Coonarr Beach and we will refinance the rest.
Cockerill: The Bank wants to be repaid in full and has no appetite to continue to fund Coonarr Beach.
Adrian: Well, would the Bank consider refinancing all the facilities?
Cockerill: No, the Bank does not wish to enter into further funding arrangements with the group. Given that you are attempting to obtain finance however, I will seek approval within the Bank to extend your standard interest rates for a short period to allow that to occur despite the Bank reserving its rights to charge interest at the penalty rate.
Following the meeting, correspondence continued.
On 1 June 2010, Mirels emailed Cockerill telling her that he had asked John Poulos (who was General Manager of an organisation called Lion Pacific Finance) to arrange a Letter of Offer and had advised him that on receipt of the offer, Cockerill would review it and conditions and if considered satisfactory, issue the Letter he required regarding the release of the properties from the security pool.
Cockerill responded on the same day as follows:
I look forward to receipt of your offer of finance.
As discussed yesterday, you need to supply the Bank with a letter of offer for finance if you wish us to even consider your proposal to disaggregate the facility.
I did not say at any stage that I would issue a letter that the Bank would release the Gladesville and Coonarr Beach properties from the security pool. I said I would review the facility (I will have questions for the borrowers in this process), visit the properties, consider the way the Bank wishes to proceed and inform the parties in due course.
On 18 June 2010, Mirels wrote to Cockerill attaching what he described as a refinance offer for 8A Pile St and informing her that they were waiting for refinance approval for 8 Pile St and Coonarr Beach. Attached to the email was a document on the letterhead of an organisation called Balmain Commercial, entitled "Terms of Approval".
The Terms of Approval stated that Balmain Commercial had arranged approval "in principle" for a facility in the sum of $2,000,000 on the security of 8A Pile St for a term of 30 years at an interest rate of 8.09%. It described the mortgagee as "Origin - (Owned by ANZ)". It stated that the loan had been approved subject to an updated valuation being received and deemed satisfactory by the Lender.
Cockerill says that she recalls reviewing the documents and did not consider that they were in a form capable of giving the Bank comfort that they could be accepted.
On 28 June 2010, Mirels wrote to Cockerill as follows:
Please see email below and attached Letter of Offer for 8 Pile Street $2,000,000.
Total funding approval now in place is $4m (i.e. $2m for 8a Pile Street and $2m for 8 Pile Street) which is $500k short of previous amount advised.
In the first instance we would like to request that Bankwest confirm whether $4m is sufficient to release Pile Street. In the event that this is not acceptable to Bankwest and we are not able to arrange finance with another financier then plan B will be for Adrian to sell the front block of land (i.e. 8a Pile Street) and apply the proceeds to Bankwest debt reduction (up to $2.5m) and then only finance his house 8 Pile Street.
ln regard to the Coonarr Beach property, we only have one financier who may be interested in this property and should have an answer soon.
I have also attached (separate email) Colliers appointment to sell 10 Regatta Road and 22 Spencer Street.
The attached "Letter of Offer" was from Balmain Commercial in the same format as the one earlier provided in connection with 8A Pile St. It referred to an approval in principle but from Adelaide Bank. The loan conditions included a maximum 60% LVR and being subject to an updated valuation deemed satisfactory by the Lender.
On 8 July 2010, Sharma wrote to Cockerill as follows:
Antonio is ready with his refinance for:
10 Regatta Road, Five Dock, NSW - $1 Million
22 Spensor (sic) Street, Five Dock, NSW - $1 Million
Can you please make the necessary arrangements, so that he can pay the debt and move it to St George Bank?
Also can please get in touch with Ian/Adrian to sought (sic) out the balance of the loan.
Also I could not receive any reply for attached emails, can you please organize that in future the portion of interest not belonging to Remo should not the debited to Remo Corporation Pty Ltd (sic).
On 12 July 2010, Cockerill wrote to Mirels and Sharma as follows:
Thanks for your patience. My apologies for not getting back to you sooner it's been a busy time with EOFY as I'm sure you would both understand.
My understanding is that:
1. Antonio has obtained finance from St George for $2m to pay-out the following facilities:
100 119893 1 $1.302m
100 161640 6 $650k
2. Adrian bas obtained finance from Adelaide Bank / Barnes for $4m to pay-out the following facilities:
100-161398-7 $3.000m
100 161642-2 $3.302m
So I'm $2.302m short (against Coonar Beach).
Rajeev - could I please obtain a copy of the finance offer and confirmation that all conditions precedent have been met.
Ian - could I please obtain confirmation that the conditions precedent for the re finance have been met. Could I please also obtain your re finance arrangements for Coonar Beach.
Correspondence continued for some months.
Cockerill says that during the period June 2010 to September 2010, she received a number of proposals for payment of part only of the outstanding debt. She says that whilst the Bank was awaiting the provision of a proposal to repay the total outstanding debt owed under the facilities, she arranged on a number of occasions, for the Bank internally to extend the expiry date of the facilities so that interest would not be charged at the Overdue Rate under the Bank's General Terms for Business Lending.
Cockerill ceased to have involvement in the file in about mid-September 2010 when it was transferred to Will Griffiths, who was seconded to the Bank from August 2010 to August 2012.
In his affidavit evidence, Adrian deposed to further attempts to refinance. These included obtaining updated Terms of Approval from Balmain Commercial (in the same format as earlier Terms) dated 2 March 2011, for loans of $2,000,000 each for Pile St.
On 18 July 2011, the Bank made demands for payment on Adrian, Claudia and Remo Corporation.
During the hearing, Adrian was cross-examined about his ability to discharge his liabilities to the Bank. The cross-examination was directed to the position on 23 February 2010. Adrian maintained that he had money in the bank on 23 February 2010 capable of discharging his liabilities. He offered to produce bank statements showing this. In answer to a call from the Bank, Adrian produced sets of Bank statements from three separate accounts with the ANZ Bank, two in the name of Remo West Ryde Pty Ltd, and one in the name of WR Retail Constructions Pty Ltd. The accounts were undoubtedly active in 2009 and 2010, with significantly fluctuating balances. In one of its accounts, as at the end of May 2010, Remo West Ryde was in credit for $3,996.39, and in another, at the end of April 2010, was in credit for $53,716.99. WR Retail Constructions had a credit balance as at the end of May 2010 of $775,674.57. By November 2010, the balance was $8,631. Adrian produced no accounts in his or Claudia's name.
[8]
Spencer St and Regatta Rd
In his letter of 17 May 2010 to Shying (referred to earlier) Antonio wrote:
Please be advised that once Adrian's Group pays off their share of $3.3Million (out of the total loan of $5,247,000 ($3,302,000 +$645,000 +$1,300,000) then I would retain the balance of $1,947,000.
This proposal was referred to in a Bank Inward Transfer Memo dated 19 May 2010.
On 17 June 2010, Antonio requested that Remo Corporation only be debited with interest on the loan of $1,947,000 in accordance with the split (under that agreement Antonio retained control of Remo Corporation).
On 5 August 2010, solicitors acting for Antonio wrote to Cockerill seeking the Bank's agreement to a proposal for Antonio to refinance by paying down part of the loan ($2,000,000) and against release of the securities over Spencer St and Regatta Rd. This would have left $6,300,000 owed to the Bank, secured over Pile St and Coonarr Beach.
Cockerill's response, in an email dated 11 August 2010, was that the Bank was not prepared to disaggregate the loans and that the Bank required Coonarr Beach, Spencer St and Regatta Rd to be refinanced simultaneously.
The Bank also instructed solicitors, who wrote to Antonio's solicitors on 18 August 2010 rejecting the payout proposal and taking the position that for security to be released, all amounts owing had to be paid in full.
The Regatta Rd property was put up for auction in August 2010. It failed to sell. It was put up again in March 2011 and again it failed to sell. Negotiations by Antonio with a potential purchaser continued into April 2011 but there was no sale. Negotiations with a potential buyer for 22 Spencer St also fell through.
On 16 June 2011, Sharma, on behalf of Antonio, made the following proposal to Griffiths:
As discussed over the phone Antonio is happy to buy both the properties with his superannuation fund, duly funded by Bank of QLD with the following prices:-
1. 10 Regatta Road, Five Dock $1,000,000 excluding GST
2. 22 Spensor (sic) Street, Five Dock $960,000 excluding GST
Could you please accord your approval for the same?
Griffiths responded on 20 June 2011 as follows:
The Bank has no objection to the proposed sales. Please provide me with anticipated settlement dates.
Spencer St and Regatta Rd were ultimately sold in September 2011, and the proceeds paid to the Bank.
In his affidavit evidence, Antonio says that he had several conversations with Griffiths. In his oral evidence, he said that these conversations were on the telephone. He says that before he sold Spencer St and Regatta Rd, a conversation to the following effect took place:
Antonio: I want to sell the Spencer St property and the Regatta Rd property.
Griffiths: You can't do that because they have been given to the Bank as security for the guarantee on the Remo Facility.
Antonio: What if I pay the proceeds to the Bank?
Griffiths: If you do that the Bank will allow you to sell the Properties.
Antonio: And my guarantee?
Griffiths: If you pay the money to the Bank, everything is over.
Antonio says that he could not sell the properties, and that he had another conversation with Griffiths to the following effect:
Antonio: I can't sell the Properties, I now want to sell them to my superannuation fund, can I do that?
Griffiths: If the Bank agrees on the purchase price, you can do that.
Antonio says that he obtained market appraisals from a real estate agent and provided them to Griffiths, after which a conversation to the following effect occurred:
Antonio: I will pay these amounts to the Bank to get my properties and my guarantee released.
Griffiths: If you pay the net proceeds to the Bank, the properties and your guarantee will be released.
Under cross-examination, it was put to Antonio that nothing was ever said to him by Griffiths that upon payment of the proceeds of sale his guarantee would be released. Antonio maintained that Griffiths said it a couple of times, not once.
Griffiths agrees that he had discussions with Antonio concerning the sale of Spencer St and Regatta Rd. He agrees that Antonio told him that he wanted to sell the properties and accepts that he may have said that the properties were security for Antonio's obligations to the Bank. He denies having said words to the effect that if Antonio paid the money to the Bank everything would be over. His recollection is that he said words to the effect "provided the Bank agrees to the purchase price, it will provide discharges of mortgages for those properties." He denies ever having said words to the effect that if Antonio paid the net proceeds to the Bank, the properties and his guarantee would be released.
He says that as at January 2011, he understood there to be a security deficit of at least $2,669,764, and that the sale of those properties did not improve that position. He says that in those circumstances, he would not have agreed to the Bank releasing Antonio's guarantees as this would have further exacerbated the shortfall. He says he had no authority or power to agree to release a guarantor, nor would he have agreed to do so, and any such request would have required approval of Ogilvy.
He says that his understanding at that point in time was that the standard practice of the Bank would have been, in the circumstances, to require Antonio to put a request for termination, release or change in writing to the Bank. That request would then have been provided to Ogilvy for his consideration in the form of a Further Strategy Paper. He says that at no stage did he receive any request, written or otherwise, for the release of Antonio's guarantees. He says that if such a request had been made, he would have recommended that the request be declined.
Counsel for Antonio cross-examined Griffiths. It was put to him that Antonio offered to settle his share of the liability to the Bank for $2,000,000. Griffiths denied this. He denied having agreed that Antonio would be released from his liabilities to the Bank. He agreed, however, that it was fair to say that his recollection of events in 2010 and 2011, seven years ago, is not that strong.
[9]
the hearing
The trial of this matter was originally set down on 6 May 2016 to commence on 27 February 2017. On 10 February 2017, I vacated the hearing date on the application of Adrian and Claudia. I gave leave for them to file a Further Amended Statement of Claim and to seek additional disclosure. I gave leave for West Ryde Developments Residential Pty Ltd, a company associated with Adrian, to be joined as an additional plaintiff. I gave the plaintiffs leave to rely on further evidence, which I understood was to be expert evidence in support of the claim proposed to be brought by the additional plaintiff. I fixed the matter for hearing to commence on 17 July 2017 on an estimate of 12 hearing days.
On 7 July 2017, the plaintiffs, represented by Mr R Angyal SC, made a further application to vacate the hearing on the basis that a representative action had been commenced in the Court against the Bank in respect of which the plaintiffs suggested they were class members and they wished to join in them. I refused the application: Carmelo Adriano Mastronardo v Commonwealth Bank of Australia trading as Bank West [2017] NSWSC 1020.
Mr Angyal, and the solicitors instructing him, had recently come into the matter. An invitation by the Court to delay commencement of the trial for a day or two was declined.
The trial commenced, as scheduled, on 17 July 2017. The plaintiffs were represented by Mr Angyal and Ms M Bridgett of counsel. The Bank was represented by Mr M Dempsey SC and Mr M Rose of counsel. Antonio was represented by Ms M Dolenec of counsel.
On the morning of the first day, the claim of the additional plaintiff, West Ryde Developments Residential, was dismissed by consent. I ordered that company to pay the Bank's costs of the dismissed claim.
The evidence was concluded before lunch on Wednesday 19 July 2017, at which time I stated that submissions would start at 2pm. Mr Angyal was, however, not in a position to commence submissions. The Court was unable to continue hearing the matter on 20 and 21 July 2017. The hearing was stood over to resume on 24 July 2017.
Over the weekend, my associate received an email from Mr Trevor Hall, solicitor, enclosing an outline that the plaintiffs' solicitors, Tomaras Lawyers, had requested he distribute. The email made reference to the retirement of Senior Counsel from the matter and to the fact that Mr Hall was now assisting the plaintiffs.
The hearing resumed on 24 July 2017. Mr Angyal did not appear. Mr Hall announced his appearance for the plaintiffs, as solicitor advocate.
The hearing was completed in some six hearing days.
[10]
The release provision claim
Despite their pleadings ranging widely, Adrian and Claudia confined their case to one for damages in contract for breach by the Bank of the release provision and for damages under s 12GF(1) of the ASIC Act on the footing that the same conduct was unconscionable. They made no attack on the efficacy of their guarantees, nor did they put in issue the quantum of the Bank's claim.
They had significant difficulty in providing a sensible articulation and quantification of the loss said to have been caused to them by the Bank. They managed to do so on the last morning of the hearing by way of a schedule purporting to compare the position they are in with the position they would have been in had they paid $4,500,000 on 31 May 2010 using the funds they say were available from the Adelaide and ANZ Banks under the Balmain Commercial Terms of Approval ($4,000,000) and $500,000 from the funds in the bank account of WR Retail Constructions.
Their calculations take into account the payment made in October 2011 by Antonio after sale of Spencer St and Regatta Rd, and interest actually paid from June 2010 until payments ceased. They assume the interest rates in the Balmain Commercial Terms of Approval. They start with the full amount of the Bank's debt ($18,247,162.43) and then deduct from it $4,500,000 (plus interest to 17 July 2017), and the amount which would have remained owing to the Bank on the loan (plus interest to 17 July 2017) which totals $11,371,065.79, to which they add back interest actually paid ($401,708.18) making a total of $10,969,357.61.
This leaves a balance of $7,277,804.82 which they claim as their damages.
They make no allowance for having had the benefit since 31 May 2010 of the $500,000 in cash which they say they would have paid, but did not. The interest on the balance owing to the Bank is calculated as simple interest. The Bank says (although the Court was not given a calculation) that using compound interest rates would erode the entirety of the plaintiffs' claim, and more.
The plaintiffs selected 31 May 2010 as the date of the breach (the date upon which to calculate their loss). This was the day upon which they assert Cockerill said that the Bank did not care what the agreement said and insisted upon a complete refinance. This conduct, seen in the context of what had occurred since Ng's email of 12 March 2010, is what the plaintiffs rely on as constituting the Bank's repudiation of the release provision and unconscionable conduct.
In order to establish loss, the plaintiffs must show that:
1. they could and would have paid $4,500,000 to release Pile St and that by doing so they would have been in a better position than that they now are in; and
2. the Bank would have been obliged to release Pile St, that is, that there would have been no existing default and that an LVR of 70% would have been maintained.
According to the Inward Transfer Memo of 19 May 2010 referred to earlier, the total value of the Bank's security consisting of Regatta Rd ($1,570,000), Spencer St ($1,550,000), Coonarr Beach ($2,800,000) and Pile St ($6,600,000) was $12,520,000. At the time the debt was $8,247,000, yielding an LVR of 65.9%. If Pile St had been removed, a payment of $4,103,000 (not $4,500,000) would have maintained an LVR of 70%. However, the case was conducted on the footing that the plaintiffs could and would have paid $4,500,000. For reasons which will emerge later, this difference does not affect the outcome.
The Bank does not dispute that it was contractually bound by the release provision. For good reason, it said very little in answer to the complaint that it repudiated it. It did.
From as early as 10 March 2010, the Bank's position was one of discomfort with the Remo facility, not least of all because it considered the pricing for the risk was not appropriate. It did not want the business.
Cockerill denied having said that the Bank did not care what the agreement said. However, I am satisfied, having regard to the Bank's objective contemporaneous behaviour that on 31 May 2010 she conveyed the message that the Bank did not consider itself obliged to adhere to the release provision. Albeit that 31 May 2010 was the last day of the extended second commercial advance and overdraft, and default may have been thought to be imminent, Remo Corporation had not to that point defaulted in the making of any payment. The Bank had no entitlement to require an entire refinancing given that the first commercial advance was to expire more than two years later. Its demand for entire refinancing was consistent with its attitude of not being bound by the release provision.
Whilst the Bank repudiated the release provision, I do not consider that its conduct was unconscionable within the meaning of s12CB(1) of the ASIC Act. Unconscionable conduct within that provision requires a high level of moral obloquy: see Paciocco v Australia and New Zealand Banking Group (2016) 258 CLR 525 at 587 [188]. The Bank's conduct did not have that quality, particularly having regard to the fact that it occurred in the context of the Bank having given multiple extensions of the second commercial advance and overdraft, including on 29 March 2010 when it offered the extension to 31 May 2010. Only because of these extensions was the Remo facility not in default by non-payment on 31 May 2010. Its conduct was no more than a common or garden breach of contract.
I turn then to loss and damage. For the reasons which follow, the plaintiffs have not established that they suffered any by the conduct complained of. It was not suggested that the measure of damages for breach of contract would be any different from that for breach of the ASIC Act. They also did not seek nominal damages for breach of contract simpliciter.
As at 31 May 2010, and at all times thereafter, the Bank was not obliged to release Pile St under the release provision because there had been or were events of default.
On 13 April 2010, there had been an event of default as a result of the issue of the Enforcement Warrant in respect of Coonarr Beach.
From 1 June 2010, there was default with respect to repaying the second commercial advance and overdraft. There was no obligation on the Bank to grant any further extensions.
The plaintiffs have not established that they could or would have paid $4,500,000 to the Bank at any time, let alone on 31 May 2010.
The assessment of what the plaintiffs would have done is to be made with due regard to objective factors which prevailed at the time: Chappel v Hart (1998) 195 CLR 232 at [32]; Rosenberg v Percival (2001) 205 CLR 434 at 449; Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 581.
All the contemporaneous material undermines the suggestion that they could or would have paid.
As early as 17 May 2010, in his letter to Shying, Adrian wrote that the Bank was not willing to honour their agreement and that he would "now arrange discharge" of his loans. He never did so. Presumably if he could have, he would have.
On 1 June 2010, Cockerill made it clear that a Letter of Offer for finance was necessary. All that was produced were the Balmain Commercial Terms of Approval.
The two Balmain Commercial Terms of Approval (dated 8 and 28 June 2010 respectively) fall far short of establishing that the plaintiffs had $4,000,000 at their disposal. The Terms of Approval record that Balmain Commercial had arranged approval in principle for facilities, subject to conditions including valuations being received and deemed satisfactory by the lenders. No evidence was called from the potential lenders or from Balmain Commercial itself as to the prospects of actual money being available. They have not established what those conditions would have been, let alone that they would have been satisfied.
I am not satisfied that the plaintiffs would not have defaulted in their obligations to those lenders in any event. After all, they stopped paying interest in September 2011.
On 28 June 2010, Mirels asked whether $4,000,000 would be sufficient to release Pile St, and stated that in the event that this is not acceptable to the Bank and they were not able to arrange finance with another financier then plan B would be for Adrian to sell 8A Pile St and apply the proceeds to Bank debt reduction (up to $2,500,000) and then only finance 8 Pile St. At no point did Adrian or anyone on his behalf assert that he had additional cash resources available.
I am not satisfied that Adrian and Claudia had the additional cash resources available to pay the additional amount which was required. All that was established was that there were credit balances in bank accounts of entities related to him, not that there were funds which could lawfully have been used by him for the avowed purpose.
On 12 July 2010, Cockerill referred to the finance of $4,000,000 that Adrian had available. There was no suggestion in response that additional monies were available.
[11]
Antonio
Antonio asserts, and the Bank denies, an oral agreement reached in a number of telephone conversations, between him and Griffiths under which he would, upon payment of the proceeds of sale of Spencer St and Regatta Rd to the Bank, be released from his personal guarantee of the Remo facility.
In addition to denying the agreement, the Bank puts that the alleged agreement was not supported by consideration.
Where a party seeks to rely upon spoken words as a foundation for a cause of action, including a cause of action based on a contract, the conversation must be proved to the reasonable satisfaction of the Court which means that the Court must feel an actual persuasion of its occurrence or its existence. Moreover, in the case of contract, the Court must be persuaded that any consensus reached was capable of forming a binding contract and was intended by the parties to be legally binding. In the absence of some reliable contemporaneous record or other satisfactory corroboration, a party may face serious difficulties of proof. Such reasonable satisfaction is not a state of mind that is obtained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question of whether the issue has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect inferences: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; Helton v Allen (1940) 63 CLR 691 at 712; Rejfek v McElroy (1965) 112 CLR 517 at 521; Watson v Foxman (1995) 49 NSWLR 315 at 319.
The sensation of feeling an actual persuasion, after a contest, that an event has happened or that something exists is one which is well known and recognised by experienced trial judges for what it is.
Antonio has the onus of establishing the agreement for which he contends. This entails proving to the reasonable satisfaction of the Court that the words said to give rise to the agreement were actually said, and that the alleged consensus was capable of forming a binding agreement and was intended by the parties to be legally binding.
Antonio has not discharged that onus. Having observed both witnesses, I feel no actual persuasion that Griffiths said words to the effect that Antonio would be released from his guarantee.
I prefer the evidence of Griffiths. I formed the view that he is a truthful witness. His evidence sits comfortably with the contemporaneous objective material and the inherent probabilities whereas that of Antonio does not.
Neither produced any written record of what would have been a significant conversation.
In neither of his letters of 7 April 2010 and 17 May 2010, did Antonio make reference to any such release.
Sharma's 16 June 2011 proposal does not refer to or suggest such a release and neither does Griffiths' response on 20 June 2011. Griffiths was not cross-examined on his evidence as to why he would not have, and did not have authority or power, to have agreed to the release.
In support of its contention as to lack of consideration, the Bank relied on the rule in Foakes v Beer (1884) 9 App Cas 605 that the consideration for discharging an indebtedness in a particular sum cannot consist of a promise to pay, or the payment of, a lesser amount of money.
In Amos v Citibank Limited [1996] QCA 129, the Queensland Court of Appeal in a joint judgment of McPherson JA and Ambrose J, with which Davies JA agreed, held that the Common Law rule continues to prevail that some valuable consideration in law must be shown for a creditors promise to release the unpaid balance of a debt.
It was put on behalf of Antonio that consideration consisted in Antonio procuring his own superannuation fund to buy Spencer St and Regatta Rd in circumstances where there had been difficulty in selling them and facilitating the Bank getting the proceeds in reduction of its debt. This was, however, not consideration. The Bank had security over those properties, and the reduction was merely the result of an informal realisation of that security.
As was the case in Amos, the debtor here (Antonio) claims no more than that the creditor (the Bank) has agreed and is consequently bound to accept a sum less than the amount that was and is controvertibly due to it.
The alleged agreement was not supported by consideration.
[12]
conclusion
The plaintiffs' claim is dismissed.
The Bank is entitled to:
1. money judgments against Adrian and Claudia under the Mastronardo facility and as guarantors of the Remo facility to the full extent of their respective guarantees, and an order for possession of 8 and 8A Pile St;
2. a money judgment against VSA as guarantor of the Remo facility, and to an order for possession of Coonarr Beach;
3. a money judgment against AM as guarantor of the Remo facility; and
4. a money judgment against Antonio as guarantor of the Remo facility.
The parties are to bring in short minutes of order reflecting this outcome.
I will hear them on costs, should this be necessary, and on any other issues that remain to be resolved.
The exhibits are to be returned.
[13]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 11 August 2017
Parties
Applicant/Plaintiff:
Carmelo Adriano Mastronardo
Respondent/Defendant:
Commonwealth Bank of Australia trading as BankWest