Cousens v Grayridge Pty Ltd; Hillside Way Pty Ltd v Grayridge Pty Ltd [2000] VSCA 96

Court of Appeal (Vic)|2000-06-02|Before: CHARLES, BATT and CHERNOV, JJ.A.

For the reasons I have given I consider that the appeals should be allowed. In proceeding No.7373 of 1997 I would set aside the judgment below and substitute, on the claim, judgment for the defendant and, on the counterclaim, a declaration and an order as to delivery up such as mentioned earlier. In proceeding No.6452 of 1998 I would set aside the judgment below and substitute judgment for the defendant on the claim.

[11] Bank of New Zealand v. Fiberi Pty. Ltd. (1992) 8 A.C.S.R. 790 at 809.

[12] Mr. Winter's response refers to a letter from Bulfin "dated 18th June". There was no such letter in evidence, but it seems virtually certain that Mr. Winter was referring to the apparently undated letter. Presumably, Mr. Winter ascertained Bulfin's client borrower's name in a telephone conversation. His shorter letter of the same date to Bulfin suggests such a possibility.

[13] The guarantor's obligations are contained in clause 28 of the Memorandum of Common Provisions.

[15] The acceptance, signed by the appellant and dated 25 June 1997, of the respondent's offer of finance stated that a cheque for $2,850 was enclosed in payment of fees. But there was no double payment. For Mr. Winter did not receive such a cheque and Bulfin told him to deduct the fee from the advance.

[16] The receipt does not appear to have been tendered below, but his Honour in making the finding set out verbatim in the text above, and Mr. Winter, each referred to the page of the Court Book at which the receipt was to be found.

[17] The deed was of course not dated until 14 July, presumably because it was not received by Mr. Winter, executed by the appellant and Hillside, until that date. The commencing date of 10 July for the calculation of interest is in fact referred to in the letter to the appellant of 17 July already mentioned.

[18] There were two other documents in which, his Honour found, Bulfin had forged the appellant's signature. Bulfin had, he said, probably handwritten the documents themselves. One purported to be a Statement of Income and Expenditure of the "Lightning Ridge Trust" [sic], the other to be a Statement of Assets and Liabilities of the "Lightning Ridge Trust" [sic]. The appellant denied signing them and disputed the accuracy of their contents. The documents had been prepared by Bulfin for the purposes of the mortgage guarantee insurance. They falsely inflated the income and the assets of the Trust and misrepresented the nature of its business. They were received in good faith by Mr. Winter on 27 June. The first-mentioned document was dated 27 July 1997, whilst the second was dated 27 June. From Mr. Winter's evidence and the chronology of events it is clear that the first document was misdated.

[19] It was later accepted that the disbursements listed in the Disbursement Authority dated 9 June 1997 and signed by the appellant constituted a small exception.

[20] Even Macdonald's first name and surname were misspelled in it.

[21] Views on the facts expressed in these reasons naturally will not bind the parties to that dispute, if still extant.

[22] Again, views on the facts expressed in these reasons will naturally not be binding in that proceeding, if still extant.

[23] If Ex.A were a forgery or akin thereto, I do not think it could be contended that Bulfin's receipt of the mortgage advance was authorised by the appellant.

[24] It is true that on Ex.A the appellant's signature is that of a witness only, but, as Mr. Gurgeil of Feingold Partners explained, Macdonald was the lender in the other half of the transaction and what I might loosely call the "beneficial" borrower under the Feingold mortgage, as he understood it.

[25] The document in the appeal book is entitled "Proposed amended reply" etc., but it seems that leave to amend was granted.

[32] at 79-80 and towards the end of 81

[33] For instance, that Bulfin "basically grabbed the ball and ran with it himself".

[34] I do not by this mean to imply that the directions communicated as to disbursement of funds were the appellant's: there is no evidence of this.

[35] Mr. Winter's letter of 17 July 1997 suggests that he also relied on Bulfin's earlier instructions that settlement was to be effected on 10 July. That instruction does not bear on the authority to receive payment at settlement. In any event, it suffers from the same deficiency as I proceed to identify in the text.

[38] See further para.55 and fn 45 below.

[40] Woodward v. Buchanan (1870) L.R. 5 Q.B. 285

[42] As to which Northrop, J. in Mister Figgins Pty. Ltd. v.Centrepoint Freeholds Pty. Ltd. [1981] FCA 15; (1981) 36 A.L.R. 23 at 31 disagreed as regards oppression and unfairness and Cross on Evidence para.[21290] doubts his Lordship's correctness in regard to notice or surprise.

[45] Emphasis added. Earlier on that page Dixon, J., speaking in the context of a prosecution, stated the requirement to be that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. Evatt, J. at 385 spoke of the task of admeasuring the probability or improbability of the fact or event in issue, if we are given the fact or facts sought to be adduced in evidence.

[47] For a custom or usage does not have to be universal or without exception: Con-Stan Industries of Australia at 236.

[48] But I have not departed from any finding of his Honour based on credit.

[49] This might be inferred hearsay or opinion evidence of Bulfin, but I am not using it to make a finding of fact but simply as an argumentative consideration.

[50] Lloyd v. Grace, Smith & Co. [1912] UKHL 1; [1912] A.C. 716

[51] Ruben v. Great Fingall Consolidated [1906] A.C. 439 and Northside Developments Pty. Ltd. v. Registrar-General [1990] HCA 32; (1990) 170 C.L.R. 146 at 193

[52] Since the respondent relied on the deed in its amended reply and defence to counterclaim (in response to reliance on it by the appellant in her counterclaim), it may be accepted that the rule that the estoppel is available only in an action brought on the deed (Spencer Bower & Turner_, Estoppel by Representation,_ 3rd. edn., 168 and 175) was satisfied.

[53] Hillside was not a party to the acknowledgment in clause 3, though it seems to have joined in the deed largely for conformity. But if clause 3 prevented the appellant from denying liability for the principal sum, Hillside's guarantee would make it liable, secondarily, for the principal sum. A default under the deed was by a clause in the mortgage to which the appellant and Hillside were parties deemed to be a default under the mortgage.

[57] Spencer Bower & Turner, op. cit., 161-175 and 172-175. See also Greer v. Kettle at 166-167 per Lord Russell of Killowen, pace, perhaps, Lord Maugham at 171; and Con-Stan Industries of Australia at 244-245. The changes in the reach and basis of estoppel by deed since Coke's time are explained in The Law of Australia, Title 35.6, Estoppel, page 20, para.[19].

[62] [1920] 2 K.B. 80 at 86 (reversed on appeal, though without criticism of the passage cited)

[64] The respondent's offer conveyed by S.V. Winter & Co. by letter of 19 June 1997 did not provide for this.

[65] By reason of the appellant's acceptance on 25 June 1997 of the offer, which provided for this.

At a glance

Court

Decision date

Before

Source

Judgment (49 paragraphs)

Cases Cited (1)