National Australia Bank v Caporale - [2012] NSWSC 1014 - NSWSC 2012 case summary — Zoe

NSWNSWSC

National Australia Bank v Caporale

[2012] NSWSC 1014

Supreme Court of NSW|2012-08-17|Before: Beech-Jones J, Davies J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2012-08-17

Before

Beech-Jones J, Davies J

Catchwords

168 CLR - Legione v Hateley [1983] HCA 11

Source

Original judgment source is linked above.

Catchwords

168 CLR - Legione v Hateley [1983] HCA 11

Judgment (14 paragraphs)

[1]

Judgment 1These are six separate proceedings brought by the National Australia Bank Ltd ("NAB") seeking orders for possession and monetary judgments against five defendants: Ms Rosa Caporale, Mr Giuseppe Caporale, Mr Tommaso Caporale, Caporale Builders Corporation Sydney Pty Ltd ("Caporale Builders") and Zippoz Pty Ltd ("Zippoz"). Mr Giuseppe Caporale is the defendant to two of the proceedings. The proceedings were heard together and I ordered that evidence in each proceeding be evidence in the other. As I will explain, the only substantive issue in the proceedings is a claim by the defendants that the NAB is estopped from seeking possession and recovering the amounts owing.

[2]

Background 2Rosa, Tommaso and Giuseppe Caporale are siblings. Tommaso Caporale is the sole director of Caporale Builders. He and Giuseppe Caporale are the two directors of Zippoz. 3Between 2004 and 2006, NAB extended a number of loan facilities totalling approximately $7.726 million to the five defendants. Each defendant received various amounts. The loans were secured over seventeen properties owned separately by the defendants. As part of the loan advances, Tommaso Caporale guaranteed the loan to Zippoz and the loan to Caporale Builders, and Giuseppe Caporale guaranteed the loan to Zippoz. The precise amounts advanced, properties secured and amounts now owing are described below. 4In circumstances which I will describe, in February 2007 the defendants ceased making interest payments under their loans. By that time they had embarked upon the pursuit of a commercial venture or project described as the Illawarra Employment and Teaching Centre ("IETC"). In summary, they proposed to develop land to create an education hub for the Illawarra region comprising teaching, training and special education facilities and the development of land for residential homes and student accommodation. As at February 2007, the proposed site for the IETC was property at Helensburgh owned by Caporale Builders. It was mortgaged to secure the advances from the NAB. 5In 2010 NAB commenced five of the six proceedings. In 2012 it commenced the sixth proceeding against Giuseppe Caporale. The five proceedings commenced in 2010 had a difficult procedural history. That history is outlined in Zippoz Pty Ltd v National Australia Bank Limited [2011] NSWCA 164. In summary, the defendants attempted to plead various defences which were rejected as being bad in form. Eventually, on 22 March 2011, Harrison AsJ struck out the defences and entered judgment in favour of NAB. An application to set aside those judgments was refused by Davies J on 21 April 2011. The defendants sought leave to appeal to the Court of Appeal, which was refused on 22 June 2011. Notwithstanding that refusal, they made a further application to set aside the judgments. On 7 July 2011 Simpson J granted that application. Her Honour set aside the judgments that had been entered against them, and granted them leave to file a defence in a specified form. The defence pleaded that the NAB was estopped from seeking recovery and possession by virtue of various statements that NAB officers were said to have made to Rosa Caporale throughout 2007 to 2008. From that point the proceedings were case managed until they came before me on 15 to 17 August 2012. 6Two matters should be noted. 7First, in Zippoz at [36] Basten JA queried the authority of Ms Caporale to act as she apparently had done for the individual and corporate defendants. At that time the defendants were legally represented, however his Honour noted that "If at any point legal representation should cease, but proceedings continue, the court will need to be affirmatively satisfied that she [Ms Caporale] has authority to take steps, and potentially incur liabilities, on behalf of others". As predicted, the proceedings continued and the legal representation ceased. 8Before me, Ms Caporale appeared for herself. Mr Tommaso Caporale and Mr Giuseppe Caporale attended at the hearing. From time to time, I invited them to participate by either making submissions and objections or asking questions. Thus they represented themselves, although they adopted the entirety of Ms Caporale's submissions. 9On the morning of the first day of the hearing I drew attention to the terms of r 7.1 and r 7.2 of the Uniform Civil Procedure Rules 2005 ("UCPR") in relation to the representation of the corporate defendants. I requested the provision of affidavits complying with UCPR 7.2. I received documents on the morning of the second day of the hearing signed by Giuseppe Caporale and Tommaso Caporale which purported to conform with UCPR 7.2. However, they were not affidavits and did not appear to be sworn. Giuseppe Caporale and Tommaso Caporale then gave oral evidence affirming the matters set out in UCPR 7.2. Thus they represented those companies and adopted the submissions of Rosa Caporale on behalf of the two corporate defendants. 10Second, as I have stated, at the time the judgments entered against them were set aside, the defendants were granted leave to file a defence that pleaded that NAB was estopped from seeking possession or recovery of the amounts owing. The defences did not put in issue the balance of the matters alleged by NAB, namely, the advancing of the funds, the terms upon which they were advanced, the amount advanced, and calculation of the interest owing. 11In each case the content of the pleaded defence of estoppel was the same. I set out below the relevant part from the defence of Rosa Caporale: "Estoppel 6. In further defence to the claims of the Plaintiff, the Defendant says that the Plaintiff is estopped from asserting that the default alleged occurred, and that the Plaintiff was entitled at the date of commencement of these proceedings, or is, entitled by reason of such default to possession, because of the following. (a) At all material times Ms Rosa Caporale represented both herself and the other Caporale family mortgagors, being Tommaso Caporale, Giuseppe Caporale, Caporale Builders Corporation Sydney Pty Ltd and Zippoz Pty Ltd, in their dealings with the Plaintiff ('Bank') in relation to the loan agreements and mortgages that are the subject of proceedings Nos. 150085/2010, 150075/2010, 150096/2010, 150119/2010, and 150149/2010 ('the proceedings'). (b) In or about February, May, October, and December 2007, and in January, May and June 2008, there were meetings between Ms Rosa Caporale and officers of the Bank, and telephone conversations between Ms Caporale and those officers (being Mr Andrew Vale in each case, and at a meeting in October 2007, also Mr James Hill). (c) It was represented in those conversations by the Bank officers to Ms Caporale that the Bank would permit the Caporale family mortgagors not to make monthly instalment payments of interest due under the mortgages (interest only being then due, for the first 5 years of each mortgage term), but that such interest should be deferred or capitalized until a property development project being undertaken by the Caporale family mortgagors, called the 'Illawarra Education and Training Centre' (IETC), had reached a more advanced stage. Such stage was not precisely defined but stated to be one of (1) obtaining development approval for Stage 1 of the project, or (2) a restructuring of finance for the project, or (3) access to funds from third party investors for the purpose of acquiring the development site, and construction. (d) Ms Caporale informed the Bank officers that the initial intended site of the IETC was Lot 750, Princes Highway, Darkes Forest (Helensburgh), but in about December 2007 that the intended site had been changed to an area of about 43 hectares of land at Dapto. (e) Ms Caporale informed the Bank officers that the IETC was intended to comprise the construction of a new suburb at West Dapto housing about 3,500 persons, being students, educational staff, services staff, retail shop staff, their families etc., and there would be an opportunity for the Bank, for example by establishing a branch office, to serve these potential customers. Messrs Vale and Hill expressed agreement to this proposal. (e) In about June 2008, it was represented to Ms Caporale by Mr Vale, and in October 2008 by telephone by a Bank officer who described herself as 'Natalie', that arrangements had been made in the Bank's accounts for the instalments falling due to be capitalized until the stage previously discussed and described above. (f) The Bank further represented that the Caporale family mortgagors would be permitted to deferred or capitalize payment of instalments, as above described, by its conduct in making no demand for repayment of any instalments, that would under the terms of the mortgages have fallen due from March 2007 onwards, until January 2009, as described below. (f) In reliance on these representations, the Defendant and the other Caporale family mortgagors acted as follows: (i) ceased, from March 2007, to make monthly repayments of interest due under the mortgages, or of principal when instalments thereof began to fall due for repayment during 2009 and 2010. (ii) arranged their financial affairs on the basis that such repayments would not be necessary until the agreed stage for resumption, as described above, was reached; (iii) exchanged contracts in March 2008 to purchase the development site at Dapto, the purchaser being Sappia Investments Pty Ltd, a company of which Ms Caporale is sole director, and the price being $6.6 million payable in instalments; (iv) raised funds amounting to about $1.0 million from third party investors for use in the IETC project, of which about $0.5 million has been spent in part payment of the price of the Dapto site and about $0.5 million in other project expenses; (v) conducted lengthy negotiations with third parties to obtain regulatory approval and participation in the IETC project, including the NSW Minister and Departmeny [sic] of Planning, the Wollongong City Council, and the University of Wollongong; (vi) made pre-sales of residential units in the proposed subdivision of the development site, to a total value of about $35 million; (vii) the estimated total value of the IETC project now stands at about $500 million. (g) The Bank by its officers including Mr Vale, Mr Hill and 'Natalie' intended the Defendant and other Caporale family mortgagors so to act in reliance on the Bank's representations. (h) The stage at which it was intended that repayments were to resume has not been reached. (i) By virtue of the above, detriment would be caused to the Defendant if the Bank is permitted to resile from its representations that repayments would be deferred or capitalized, and to demand immediate repayment of accrued interest or principal. (j) In or about January 2009, the Bank resiled from the representations, when its officer Peter Hatter stated that the Bank demanded immediate repayment of principal and interest under the mortgages and would take action to enforce it. (k) Despite protests by Ms Caporale at that time and later the Bank reiterated this position, up to the commencement of the present proceedings on 14 June 2010."

[4]

February 2007 15A NAB filenote dated 3 January 2007 records Ms Caporale contacting the NAB and advising that "she and Tom [presumably Tommaso] will be addressing the issue of overdrawn accounts today". 16In her affidavit sworn 14 June 2011 (her "first affidavit"), Ms Caporale stated that in February 2007 she telephoned Mr Vale and had the following conversation: "13. 'Andrew, I am calling in relation to the project that we have been undertaking as you know for the educational facility. The project has been taken on board and directed to State Planning by Regional Planning due to its significance in creating employment and training opportunities in the Illawarra, where there is a high than state average youth unemployment of 20%, higher than state average commonwealth benefit recipients, higher than state average of people with disabilities and higher than state average of people who commit suicide.' 14. I said: 'Due to the current status of the project and the fact that the project has now increased in size significantly from a $30-$50 million to a $300 million dollar project, our current situation and current increased time and resource commitments, I need to change our payment arrangements as we cannot pay the monthly payments as per the contracts. I need the payment arrangements to be able to change to be able for them to be accrued, deferred and or capitalized until we can resume payments again or we restructure as a result of the project restructure. 15. Andrew Vale said: 'How are you going to do this?' 16. I said to the effect: 'this could take place either when we can draw funds from the project, or if we restructure the funding, either through the bank, or through private funds, as we have undertaken on previous projects using private funds. Either way we have enough securities to do this, given the size and value of the project and all of the properties we have which can be used as securities.' 17. Andrew asked: 'where are you up to with the project?' 18. I said: 'This project has grown as we have all realized that the educational centre needs to incorporate a lot more on site than we had originally expected given the huge demand in the area. We will now be having TAFE on site to teach the students as well. It is very critical to the area, where young people don't have as much opportunities to get work and affordable accommodation while they study. The youth in the area need something to be involved in.' 19. Andrew said: 'I can relate to this as I have a teenage step daughter who is not sure what to do, and this would be a good idea.' 20. I said: 'You need to ensure that the current payment methods can be changed so we can proceed with the project and so I need you to arrange the payments to be made in a way so that we are not in default. The payments need to be accrued or deferred or capitalized by the bank, in which ever way it is best.' 21. Andrew said: 'Do you think that there would be opportunities for the bank to be involved in various aspects of the project?' 22. I said: 'There are opportunities for the bank to fund the project, provide loans to the incoming investment purchasers, establish a bank on site to service the site being such a large site with many people. There is a lot of money for the bank from this project on a long term basis.' 23. Andrew said: 'Well the bank could fund the construction of the project, and provide other services and products that the bank could be involved in.' 24. I said: 'There are millions of dollars involved in this deal for the bank as well. And as there will [be] no issue in paying the interest accrued as the project would more than cover the interest as well as any future interest that we need to capitalize from the value of the project.' 25. Andrew said: 'How do you intend to pay for the interest?' 26. I said: 'At this point there is a few option. The interest can be made from whichever came first, which would be either from funds for the stage 1 approval or the construction funding, or if we restructure the finances as a result of the project requirements, which could include funds that would be allocated from investors coming in to fund all or part of the project. Whichever comes first there will [be] no trouble repaying or restructuring the loans with the NAB if we need to, given the size of the project now being $300 million. There is plenty of security for the NAB to be able to use for quite a few years after that, given the bank already has 15 properties as securities.' 27. I said again: 'Andrew I need to make sure that the payment arrangements can be made as I need to continue with the project, and I need your ok that you can make the arrangements. I need to leave this with you and let you take care of this.' 28. Andrew said to the effect: 'Alright I understand, leave it with me, I will take care of it. But keep me posted on how you go with the project.' 29. I said to the effect: 'Don't worry I will. I will undertake to update you on the project as it progresses.' " (emphasis added) 17Ms Caporale states that after that conversation the defendants ceased paying monthly interest. 18In his affidavit Mr Vale recalled having a number of telephone conversations and meetings with Ms Caporale from 2007 onwards, but did not recall the specific dates. He denied that he ever entered into or approved any payment arrangements with her and stated that he did not have authority to allow payments to be capitalised. Mr Vale did not address each and every aspect of the above conversation. However, he denied that he stated that NAB "could fund the construction of the project" as suggested in [23] of Ms Caporale's first affidavit. He did not recall saying words to the effect of "I will take care of it", as suggested in [28]. 19In cross examination it was suggested to Ms Caporale that she had made up the suggestion that he had stated: "I'll take care of it" in reference to her request for altered payment arrangements. 20In his cross examination Mr Vale reiterated that he was unclear as to the timing of the meeting, but was careful to state that he did not go outside his appropriate authority. His recollection was that Ms Caporale discussed the IETC, but stated he was discussing the facilities with her "as a separate issue", although he did recall her mentioning the three possibilities referred to in [26] of her first affidavit as a means of repaying the facilities. 21Having heard their evidence, I am not satisfied that at any point Mr Vale stated that NAB would fund the construction of the IETC project. It is implausible that a bank officer would make such an open-ended commitment in the absence of having received any information concerning the amount of finance being sought, the scope of the IETC or its time frame, particularly in a context where the existing facilities either were in default or were about to be. This finding is reinforced by the limited authority that Mr Vale was conscious he possessed. 22I am also not satisfied that Mr Vale uttered the words "I will take care of it", as asserted by Ms Caporale. I accept that it was likely that Mr Vale was not, at that point, pressing Ms Caporale about the state of the facilities being either in default or on the verge of default. Mr Vale had the role of Relationship Manager. That kind of response would more likely be given by a person in Mr Hill's position, rather than by Mr Vale. Equally, my impression of Mr Vale was that he was careful not to make statements to Ms Caporale that would amount to some form of commitment, especially as she was a customer whose facilities were, or were about to be, in default. 23Even if I were satisfied that Mr Vale had stated the words "I will take care of it", I would not have treated that as any form of affirmation or agreement with the suggestion being put to him as to the various alternatives by which the Caporales' loans would either be brought up to date or repaid. Given his responsibilities, the statement "I will take care of it" would merely be a statement that he would do his best to facilitate a consideration of whatever concrete proposal Ms Caporale might later wish to present to the NAB. The discussion that Ms Caporale recounts was not a concrete proposal that a bank could seriously consider in relation to such large facilities which were, or were about to be, in default. 24At this point it is appropriate to note three matters about the defendants' position at or around the time of this conversation. 25First, the financial position of the defendants was such that they could no longer pay the monthly payments on their loan facilities. Ms Caporale commenced the conversation by stating "as we cannot pay the monthly payments as per the contracts". There is no evidence as to whether this circumstance had come about because of commitments they had undertaken in pursuing the IETC project or not, but in any event it does not matter. If default had not yet occurred, it was about to occur and the NAB had not done anything to contribute to that circumstance. 26Second, at that point the IETC project involved the development of land at Helensburgh that was mortgaged to the NAB. In late 2007 or early 2008 the site proposed for the IETC was changed to a site at Dapto which was not mortgaged to NAB. This would have been a significant change from NAB's perspective. 27Third, the "repayment proposal", if it could be called that, that Ms Caporale was putting to Mr Vale was one that was incapable of founding an agreement or even an estoppel that would somehow prevent NAB taking action. In response to Mr Vale's question as to how they intended to pay for the interest, she identified two options. The first option was said to be funds from the "Stage 1 Approval". There was no further elucidation of what "Stage 1 Approval" meant or why it would result in further funds becoming available. Before me, Ms Caporale sought to equate this to a development approval given pursuant to Part 3A of the Environmental Planning and Assessment Act 1979 which would increase the value of the land and allow further finance to be raised. There is no evidence to suggest that this was made clear to the NAB at this point. 28The second alternative raised by Ms Caporale in this conversation for when payment might be made was when "we restructure the finances as a result of the project requirements". Again this is far too uncertain to amount to or give rise to an estoppel. There is no evidence that there was any understanding of what the "project" was, much less the "project requirements", at this point in time. Further, what type of debt restructure would trigger NAB's repayment rights? It is unlikely that a bank would bind itself so that its debt will not become payable until either it or another financial institution agrees, on terms unspecified, to refinance that very same debt. 29The third matter raised in the conversation was the possibility of obtaining funds from investors. In the conversation as recorded in the affidavit, this was only referred to as an aspect of a restructuring of the finances, although in her defence and before me Ms Caporale suggested that it was the third event to which repayment of NAB's loan was deferred. For the purposes of an estoppel, it suffers from the same vices as the first two I have already addressed. The nature of the "project" has not been agreed upon nor discussed with NAB. Who and when the investors would be coming in and how their funds would somehow be able to be utilised to repay the NAB debt was not stated either. 30This discussion indicates that, even if I had accepted that Mr Vale said "I will take care of it", it would not have any legal consequences. It further reinforces the likelihood that he did not represent that the NAB would commit to not seeking recovery until one of the events referred to by Ms Caporale occurred. Instead, as to be expected, Mr Vale raised the obvious question as to when and how the defendants were going to meet their obligations to the NAB. Ms Caporale's response was to describe the progress of the IETC project which she hoped would provide the NAB with comfort that funds would become available. It is not unusual for a bank's customer to explain how, in business terms, they will obtain funds to meet their obligations, e.g. trading conditions will improve, assets will be sold, etc. However, the mere fact that the customer informs the bank of those circumstances, and the bank does not take immediate enforcement action, does not mean that the bank is precluding itself from taking action until one of those circumstances occurs. Leaving aside their involvement in venture capital, it must be a very rare circumstance in which a bank abandons its business model of earning profits from charging interest on loans to existing customers at regular intervals, in favour of assuming the risk of the various commercial developments being undertaken by those customers.

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October 2007 to June 2008 36Ms Caporale stated that on 29 October 2007 she attended a meeting at NAB's offices with Mr Vale and Mr Hill, and provided an update on progress of the IETC project. She states that she delivered to the NAB officers a "report on the project" which I interpret to be a written report. Her affidavit did not identify the particular report that she said she provided. However a 188 page report was tendered along with a note indicating it was given to the NAB in October 2007. In her oral evidence and in her cross examination Ms Caporale asserted that document was provided during the meeting. It promoted the IETC. Amongst other statements, it described the centre as the "next Westfields of the proposed Education and Workplace Business Model". I accept that it was provided to the NAB by her around that time. 37In her first affidavit, Ms Caporale stated that during this meeting Mr Hill said "well, just continue to do what you are doing, the bank just wants to see this through. It is not in the business of bankrupting people". 38In his affidavit Mr Hill stated that he did not recall saying the words attributed to him. He stated that they discussed the defendants' defaults under the various facilities, and that he said to them: "How do you and the other borrowers propose to repay the amounts owing to NAB?" And that Ms Caporale replied: "From a project which if DA approval is forthcoming will substantially increase the value of the property at Helensburgh, so as to allow us to borrow funds to fund the development." Mr Hill said that in accordance with his usual practice he "would have" said words to the effect: "You need to find a way to repay the debt or to refinance. You can't continue to defer payments." 39In cross examination Mr Hill recalled Ms Caporale making reference to them preparing to exchange contracts for the property in relation to the project, although he could not recall whether a report was handed over. He recalled Ms Caporale making reference to a forthcoming DA approval. 40Mr Vale could not recall receiving a report at that meeting either. He did not recall the actual report, but did recall that there was at the meeting "a report that [Ms Caporale] had prepared". He recalled that the purpose of the meeting was to "put a proposal together for the bank to have a look at for the development at Helensburgh". Mr Vale was asked: "Q. ... Do you recollect what Mr Hill said at that meeting, at the end of that meeting? A. From memory I think he said he was taking it to the Corporate area within the bank, the property managers in the Corporate for them to peruse. Q. Right. And do you recall him, Mr Hill telling me that I should just continue with what I'm doing and that the bank wants to see this through, as in continue on with the project? And he quoted that it is not in the business, ie the bank, is not in the business of bankrupting people. Do you recall that? A. No, sorry, I don't recall that." 41I am satisfied that Mr Hill said the words to the effect set out in the first two quotes in [38] and something similar to the third quote. I have already found that Ms Caporale handed over the 188 page report and I accept that she discussed the IETC project. However, I am not satisfied that either Mr Vale or Mr Hill stated anything to Ms Caporale to the effect that "the Bank just wants to see this through" in the meeting in October 2007. Neither Mr Vale nor Mr Hill expressly denied that those words were spoken. However, the phrase "just continue to do what you are doing, the Bank just wants to see this through", if spoken, could only be a reference to the IETC project. Prior to the meeting, all the NAB knew about the project was what Ms Caporale had told Mr Vale orally. The first time that it had received any written material concerning the project was in this very meeting. In those circumstances it would be very unlikely that Mr Hill would say something to the effect that "the Bank just wants to see this through", when the NAB had only just been appraised of what constituted "this". 42In making these findings I accept that there is a difference of recollection between Mr Vale and Mr Hill as to what the purpose of the meeting was. The tenor of Mr Hill's recollection was that he was seeking prompt action to obtain recovery of amounts owing, whereas Mr Vale suggests that the meeting was called to seek a briefing on the IETC project. Those two purposes are not inconsistent with one another in that, at least so far as the Caporales were concerned, the means of fixing the irregularities in their accounts was the successful pursuit of the IETC. In any event, the effect of my findings is that nothing was said by any representative of NAB to Ms Caporale at that meeting to the effect that the NAB was prepared to not seek recovery of the amounts owing, and to allow the accounts to continue in default pending some unspecified stage in the IETC project being reached. 43On 16 November 2007, a letter was sent to Giuseppe Caporale in respect of one of his accounts advising that it had been "irregular for 231 days". It warned him that his account could be cancelled within the next fourteen days, which would require the repayment of the entire loan amount. 44On 20 November 2007 a default notice was sent to Tommaso Caporale as guarantor for a number of the loans of the corporate entities, advising him that an amount of $1,054,578.29 was owing and that NAB intended to begin enforcement proceedings. 45Ms Caporale states that between November and early December 2007 she was working on progressing the IETC, including undertaking market research to determine the level of likely demand the IETC could generate for students seeking training and assistance. 46A NAB file note records that on 10 December 2007, Ms Caporale advised a NAB officer that they are "looking at a new project" and "have applied for a restructuring [of] the current loans" and that Andrew Vale had been given the application three weeks previous. The note records that Ms Caporale "was wondering if we're beginning legal action and what exactly do we do?". Ms Caporale stated that she could not recall the conversation, but that if the conversation did occur it did not negate "our original agreement", i.e. concerning the deferment or capitalisation of interest. I am satisfied that the note records the effect of the conversation between Ms Caporale and a NAB officer on that day. It is inconsistent with any belief on her part at that time that the NAB had committed itself to not pursuing its recovery rights time pending the progress of the IETC project. 47Ms Caporale states that on 20 December 2007 she met with Mr Vale and updated him on her progress with meeting various representatives of Government departments and State Government Ministers. Ms Caporale stated that Mr Vale said: "Nobody could have seen where this was going to reach. You need to continue to see this through." 48In his affidavit, Mr Vale said he could not recall stating those words, and denied that he gave Ms Caporale any advice in relation to the project. Neither of them were cross examined upon this. I am not satisfied that Mr Vale made the statement attributed to him by Ms Caporale. 49A NAB file note records Ms Caporale as having contacted the "Manual Mortgage Team" on or about 18 January 2008. The entry reads: "SPOKE WITH ROSA CAPORALE CUSTOMER TRANSFERRED FULLY VI BY ANOTHER ASSOCIATE RFD: CUSTOMER EXPLAINED IN THE PROCESS OF RESTRUCTURING HER FINANCES THROUGH ANOTHER PROPERTY. CUSTOMER ADVISED SHE IS MEETING WITH RELEVANT AREAS TO RESTRUCTURE ASAP. CUSTOMER WILL PROVIDE A FURTHER UPDATE BEFORE THE END OF JANUARY. CUSTOMER EXPLAINED THAT ARREARS ON BOTH ACCOUNT WILL BE CLEAR IN NEAR FUTURE AND BANK SHOULD NOT BE CONCERNED AS SIMPLY DELAYS DUE TO PROCESSING OF RESTRUCTURE. ADVISED CUSTOME THAT WHILST I AM HAPPY TO HOLD ACTION AT THIS STAGE TILL FURTHER NOTICE, EVENTUALLY ACTION WILL RESUME IF ACCOUNT NOT RECTIFIED. CUSTOMER INFORMED ME THAT SHE HAS BEEN COMMUNICATING WITH HER BANKER WHO HAS MORE IN DEPT DETAIL. HOLD AND MONITOR FOR UPDATES. FOLLOW UP WITH CUSTOMER IF CUSTOMER DOESN'T PROVIDE UPDATE BEFORE THE END OF THIS MONTH." 50Ms Caporale was cross examined about the contents of this note. She did not deny that it recorded accurately the terms of her conversation, although she added that it "would have been in the context of the [IETC] project". I accept that the note records the effect of what Ms Caporale advised to an NAB staff member on 18 January 2008. It is most likely that the reference to the "restructure" was to her progression of the IETC project and some form of proposed debt restructure she hoped to negotiate. However, its tenor is clear. She was aware the Caporale interests were in default, that there was a significant risk of NAB instituting enforcement action, and that she was seeking to assuage NAB by stating that funds would be forthcoming relatively soon from the pursuit of the IETC project. It does not support any suggestion that she was acting on the basis that the NAB had committed itself to not pursuing its recovery rights until some future stage of the IETC's development. 51Ms Caporale stated that around January 2008 she and the other defendants determined not to pursue the IETC at the property at Helensburgh, but instead pursue the development at a site in Dapto. As I have stated, from the NAB's perspective this difference was significant in that it meant that it no longer had security over the land the subject of the IETC project. 52Ms Caporale stated that on 28 March 2008, contracts were exchanged to purchase a property at Dapto in the name of Sappia Investments Pty Ltd ("Sappia"), a company of which she was the sole director and shareholder. She stated that prior to exchange she rang Mr Vale and said: "Andrew we have found a site in Dapto, it is about 43 hectares and about 200 metres walking distance to the railway. This is definitely a lot bigger than we had ever thought this was going to be. It looks like the project will now be worth $700 million in total. Once we exchange on this property, there is no turning, we will see it through to the end." 53Ms Caporale does not record any response from Mr Vale to that statement. 54Mr Vale did not address this conversation in his affidavit, and he was not cross examined on it. Ms Caporale was not cross examined on the conversation either. I accept that it occurred. However, it does not advance the estoppel case. It does not involve any statement or acceptance by NAB that it would not pursue recovery. It only involves Ms Caporale outlining her determination to press on with the IETC project. 55Ms Caporale says that in May 2008 she met Mr Vale and updated him on the progress of the project. 56On or about 24 May 2008, a large number of demands and default notices were sent to the defendants. Ms Caporale suggested to Mr Vale in cross examination that she had contacted him about the default letters that were being generated, that he had assured her that they were automatically generated by the NAB's computer, and that she should not worry about them as their loans would be deferred. Mr Vale denied having any such conversation. I accept that denial.

[7]

June 2008 to October 2008 57Ms Caporale states that around June 2008 Mr Vale called her and said: "Rosa, I am letting you know that your files are going to be sent to our Melbourne office." She replied: "Why are they going there?" Mr Vale: "They are being transferred down there to allow you more to continue with the project, and the interest will be capitalized in the loans." 58In his affidavit Mr Vale states that, since some time in about 2007, the mortgage review team ("MRT") in Melbourne had been managing the defendants' loan facilities. He said he told Ms Caporale before June 2008 that her files had been transferred to the MRT in Melbourne. He stated that it was his usual practice to tell customers straight away after the transfer had occurred. Mr Vale denied ever stating to Ms Caporale that the transfer would allow them to continue with the project and that interest would be capitalised on the loans. He denied ever making any representation to the effect that the NAB would permit any of the defendants not to make monthly instalment payments of interest, or to capitalise or defer interest on their loans. I accept his evidence on this topic. 59The documentary material suggests that the files were likely to have been transferred to the MRT at some time in the second half of 2007. A letter advising Ms Caporale of the arrears on her accounts was sent on 24 December 2007. It nominated a Melbourne number to call if she wished to discuss the matter. 60To this point in time, the only documentary material provided in relation to the project was the report that had been submitted in October 2007. This report was not directed to enabling the NAB to ascertain when and how its loans might be repaid, nor did it propose any debt restructure. In those circumstances, it is wholly implausible that the NAB would be prepared to allow a group of its customers to cease payment while they pursued a property development on an understanding that it would not seek recovery until some unspecified point in the future of the project. 61Natalie De Niese was employed by the NAB as a Mortgage Review Specialist in the MRT based in Melbourne between October 2007 and April 2010. On 30 June 2008, she prepared a file note of a telephone conversation she had with Rosa Caporale. Based upon her file note, she recalled that she had a conversation with Rosa Caporale to the following effect. "Rosa said: 'The project is sensitive. I understand we are in default and that the bank can proceed with legal action. But I am in the process of completing some of the requirements for the project. I will hand in the proposal in the next three weeks.' " I said: 'I will have to discuss this with your private bankers, Andrew and James, and they will consider what position the bank will take on this matter. However the default notice expired on 25th of June, and unless the arrears are brought up to date, the bank may proceed with legal action.' " 62In her first affidavit, Ms Caporale states she had a conversation with Ms De Niese in October 2008. She asserts that Ms De Niese rang her and said words to the effect of: "Rosa I am calling you to advise you that your files are in Melbourne and that your interest is going to be capitalized on the loans." And that: "The interest is just going to be capitalized to allow you to continue with the project." 63Ms De Niese could not recall speaking to Ms Caporale in October 2008, and denied saying any of these words to her. In cross examination, Ms Caporale nominated the time frame of the conversation with Ms De Niese as being "probably June to October 2008". She accepted that Ms De Niese may have said that the NAB might be pursuing legal action, but insisted that she was told that the NAB was going to allow capitalisation of interest to allow the defendants to continue with the project. 64I accept Ms De Niese's evidence as to the timing and content of the conversation between herself and Ms Caporale. It is confirmed by the file note that Ms De Niese maintained. The content of her conversation is consistent with the earlier findings I have made as to the events leading up to the year 2008. For the reasons I have already discussed, I consider it wholly implausible that Ms De Niese did, either on her own initiative or as instructed by others, advise a client that interest was being capitalised to some future uncertain point in the life of the IETC "project". 65It is appropriate at this point to deal with some evidence that Ms Caporale repeatedly emphasised as supporting her case that the NAB had represented (or agreed) that interest payments were to be deferred or capitalised until the IETC project reached a particular point. She tendered two account statements which indicated that the interest payments that were due on her loan were being deducted from one of her savings accounts from March 2007 and were then capitalised onto the loan account in October 2008. She also points to paragraph 11 of the statement of claim in her case which pleads that she "first went into default under the [loan agreement] on or about October 2008 when the defendant failed to make repayments when due under the [loan agreement]". Ms Caporale submitted this confirms that, at least from February 2007 to October 2008, NAB accepted that she was not in default and this could only be explicable on the basis that it accepted that it had represented or agreed that the interest payments could be deferred or capitalised. 66Ms Caporale maintained a "flexi-direct" account with NAB. It was from this account that interest payments on her loan were deducted. In March 2007 an interest payment of $10,219.31 was deducted causing her account to move into debit. It appears that further deductions were made. I have referred above to a letter dated 24 December 2007 that was written to Ms Caporale. It referred to the flexi-direct account. It stated that the flexi-direct account was in arrears by $119,995.57, referred to its status as the account from which interest payments under the loan were to be deducted, and requested that funds be put into the account to "ensure that it is not overdrawn". It continued: "If, in future, your nominated account has insufficient funds to cover any interest payment debited to it, we will dishonour the payment and debit it to your loan account. This means that:  You will incur a dishonour fee on your nominated account;  You will be in default under your loan contract." 67In October 2008 NAB followed through with this statement and commenced debiting interests directly from the loan account. In December 2008 it demanded payment from Ms Caporale of the balance of the loan account and the debit balance of the flexi-direct account. 68None of this conduct is confirmatory of any representation or agreement on the NAB's part to defer or capitalise interest payments and not pursue rights of recovery. Instead NAB simply omitted to debit interest to the loan account balance until October 2008 and instead debited it from the flexi-direct account. Paragraph 11 of the pleading is consistent with the point in time at which NAB debited the loan account with unpaid interest. NAB had already made it clear prior to then that the flexi-direct account was in debit balance and she was obliged to correct it. It did not state that she could ignore that debit balance. 69At this point I also note a further submission made by Ms Caporale. At the hearing she sought to tender an annexure to an affidavit sworn by a NAB officer, Mr James Wyatt, which was an internal document of NAB stating that the value of a number of the secured properties was $5,844,500.00. At the time of the tender I indicated that I would consider it provisionally relevant and consider its position when I heard final submissions (see s 57 of the Evidence Act 1995). 70Ms Caporale sought to rely on it as demonstrating that, from the time she and the other defendants took up their loans, the NAB had lent more (in excess of $7 million) than it had obtained by way of security. It was submitted that this was a circumstance that was relevant to any assessment of whether it was plausible that the NAB would represent or agree that interest should be deferred or capitalised until some stage in the IETC project was reached. It was contended that meant that the IETC represented the NAB's best chance of being repaid, whereas realisation of the properties would result in certain loss to the NAB. 71The tender fails because the time at which the values are said to be applicable is not indicated in the document or other evidence. I do not know whether the document records the NAB's understanding as to their realisable value at the time the loans were taken out or (say) their fire sale value at a later time. The latter is more likely given that the list does not include the property at Unit 13, 101 New South Head Road, Edgecliff, which was originally mortgaged by Tommaso Caporale but has since been sold. It also does not include the property at 66/17 McMahon Street, Hurstville, the subject of the second proceeding against Giuseppe Caporale. I reject the tender of that document.

[8]

October 2008 to present 72In the latter part of 2008 the files concerning the defendants were transferred from the NAB's office in Melbourne back to Sydney. 73Ms Caporale states that in January 2009 she received a call from Mr Hatter, a senior manager employed by the NAB in its Sydney office, and they had a conversation to the following effect: "Peter said: 'I now have your files. The files have been transferred from our Melbourne office and I am going to proceed with legal action. NAB will commence legal action against you.' I said: 'What do you mean you are going to take legal action? I was told from your Melbourne office last year that our accounts and files were in Melbourne. The interest was capitalised and held there until we had our approval or restructure. The purpose and reasons for our accounts to be in Melbourne was so that the payments were capitalised and no legal action would be taken to allow us to continue with our project.' He said: 'Well, I've got the files now and I am going to take legal action.' I said: 'Can I speak to your supervisor, our agreement with the NAB was that no legal action was going to be taken by the NAB until we reached our milestones to allow us to resume normal payments as per our original agreement and pay the payments that will have accrued during this process. I would like to speak to someone who knows about the agreement we have with the NAB. What authority do you have to just vary our agreement?' Peter said: 'It is my decision, I can do that.' I said: 'That's not our agreement. I would like to talk to your supervisor or someone higher who has authority and who has a knowledge of our agreement.' He refused. I said: 'There must be someone who would know about our agreement and what would have been put into place.'" 74In his affidavit Mr Hatter said that he did not recall that conversation, but he did not dispute it either. 75Ms Caporale also stated that at a meeting in February 2009 she showed Mr Hatter various documents issued by the State Government in relation to the project, and they had a conversation which included the following: "I said: 'To turn around now after having 2 years of the project would be catastrophic for us. We are in the middle of that project. To take action against us now would be catastrophic for us. It would bankrupt us and NAB would not recoup its money.' Peter said: 'Ok. We will discuss it and let you know.' I said: 'What changed in the agreement? Why things changed before we received our final approval and all the restructure as we discussed before and we were not told about that. You are just telling us now that you are going to take a legal action against us?' He said: 'The bank not only wants the capitalised interest that was held in Melbourne branch to be paid back but all of the principal amounts to be paid back.' I said: 'That was definitely not a part of our agreement at any point. The discussions that we had with Sydney and Melbourne offices representatives were that we would just pay the capitalised interest and then resume normal monthly payments once the approval and/or the proceeds of the project and/or the financial restructure occurred as a result. You should have told us before we exchange the property.' Peter said: 'We would discuss the matter between ourselves and we will get back to you.'" 76Again, Mr Hatter did not dispute Ms Caporale's evidence that they had a conversation to that effect. 77Ms Caporale states that in April or May 2009 she spoke with Mr Hatter and he said that, after considering the position, the NAB would proceed with legal action. Mr Hatter did not dispute saying that, but stated that he said that in a voicemail message. 78When a witness says in an affidavit that they "do not dispute" a particular conversation, it suggests that it was at least possible that words to that effect were spoken. However, in cross examination, Mr Hatter stated that he could not recall aspects of these conversations, but did not necessarily accept that all of them represented the effect of what he said. Nevertheless, I am proceeding upon an acceptance of the statements that Ms Caporale attributes to him. Three points should be noted. 79First, whatever may have been the position prior to this stage, by no later than April 2009 NAB had made it absolutely clear to Ms Caporale that it intended to pursue its rights of enforcement. 80Second, by this time Ms Caporale was asserting that she had some kind of agreement or understanding with NAB that there would be no such enforcement until the project had been completed. While she may have been asserting that, the findings that I have already made involve a rejection that any such understanding on her part had any proper objective basis. 81Third, it follows from my acceptance of Ms Caporale's evidence on this part of the conversation, that Mr Hatter made reference to the Bank recovering "capitalised interest". However, that assertion does not advance the defendants' case. For the reasons I have already explained, the loan agreements made provision for interest to be capitalised, and that did not prevent there being a default nor was it inconsistent with the NAB pursuing its rights of enforcement.

[9]

2009 to date 82I have referred to the procedural history of these matters above. For present purposes it is only necessary to note that the proceedings were not commenced until June 2010, being over three years after interest payments ceased and over fourteen months after Mr Hatter made the NAB's position clear. 83I have also referred above to Sappia's exchange of contracts to purchase the land at Dapto in March 2008. In her affidavit sworn 1 December 2011 (her "third affidavit"), Ms Caporale stated that the purchase price was $6.6 million but that, as at December 2011, Sappia had only paid the vendors a total of $400,000.00. The exchange of that contract is the only evidence of a commitment entered into by any entity associated with the defendants prior to the conversations between Mr Hatter and Ms Caporale in 2009. 84In her third affidavit, Ms Caporale also stated that, as at December 2011, deposits totalling $1,313,750.00 had been taken from various off the plan purchasers for a total of 162 units in the IETC development. She asserted that liabilities over $39.3 million had been incurred, of which she said $700,000.00 had been paid. An invoice was tendered which was rendered in April 2011 to Connectland Pty Ltd for $277,630. Connectland Pty Ltd is now in liquidation (Connectland Pty Ltd v Cardno Forbes Rigby Pty Ltd [2011] NSWCA 391 at [1]). Connectland Pty Ltd was originally the proponent of the development at Dapto, but the relevant department has since been advised that another company will be substituted as the proponent. 85Further, Ms Caporale stated that 99 year leases have been granted by an entity of which she was a trustee to a South African company, and also to the University of Wollongong, enabling the University to take up teaching space within the IETC. 86Ms Caporale stated that: "All these financial commitments were entered into by me on the faith of my agreement with officers of the NAB, described in my previous affidavits, that payment of principal and interest instalments on the NAB loans was deferred." 87There are two difficulties with this assertion. First, I have rejected the allegation that there was any such agreement, representation or any mutual understanding to the effect suggested by the paragraph. Second, with the exception of the exchange of contracts for the purchase of land at Dapto in March 2008, Ms Caporale has not identified any commitment, undertaking or obligation incurred prior to the unequivocal advice from Mr Hatter in early 2009 that the NAB was insisting on its enforcement rights.

[11]

The estoppel claim 89I have set out above the estoppel claim that is pleaded in the defence of Rosa Caporale. It is appropriate to first address the relevant allegations made in that pleading before determining which estoppel claim is made. 90It follows from the above findings that I do not accept that any representations in the form pleaded in either [6(c)] or [6(e)] were made by any representative of the NAB. Neither NAB nor any of its officers represented that the interest due under the mortgages could be deferred or capitalised until some particular stage of the development of the IETC. Neither NAB nor any of its officers, including Natalie De Niese, represented or stated that "arrangements had been made in the Bank's accounts for the instalments falling due to be capitalized" until some particular stage of the IETC development. In relation to [6(f)], the NAB did make demands for payments. As I have found, a number of letters to that effect were sent by the NAB. The failure of the NAB to take any enforcement action other than issuing the letters did not amount to any representation to the effect that is pleaded, nor did it confirm any such representation. 91Subparagraph 6(f) (second occurring) of the estoppel pleading alleges that Ms Caporale and the other defendants undertook various acts in reliance on the representations that were made by NAB. I will address each of those. Subparagraph 6(f)(i) alleges that she and the other defendants ceased from March 2007 to make monthly repayments of interest due under the mortgages, or of principal when the instalments began to fall due for repayment in 2009 and 2010. As I have noted in [25] above, during their conversation in February 2007 Ms Caporale told Mr Vale that she and the other defendants "cannot pay the monthly instalments as per the contracts". This circumstance had arisen prior to any discussions between her and Mr Vale about the IETC. I do not accept that she or the other defendants ceased making interest or principal payments as a result of any discussions that they had had with representatives of the NAB. 92Subparagraph 6(f)(ii) asserts that the defendants arranged their financial affairs on the basis that such repayments would not be necessary until some particular stage of the development of the IETC, and [6(f)(iii)] asserts that they relied on the representations by exchanging contracts in March 2008 to purchase the development site at Dapto. Leaving aside the purchase of the land at Dapto, there is no evidence of any rearrangement by the defendants of their financial affairs being undertaken during the period February 2007 to 2009 at all, whether or not it was done in reliance upon what was stated or not stated by the NAB or its officers. Further, the purchaser of the site at Dapto was Sappia and the evidence was that it paid over an amount of $400,000.00. There is no evidence as to how Sappia sourced those funds and whether it had anything to do with the defendants utilising funds that would have been otherwise available to meet their commitments to the NAB. 93Subparagraph 6(f)(iv) asserts that in reliance on representations made by NAB, Ms Caporale and the other defendants "raised" funds from third party investors. I have referred to this above. There is no evidence that any of these deposits were paid prior to Ms Caporale's conversation with Mr Hatter in 2009. The same observations applies to 6(f)(vi). 94Subparagraph 6(f)(v) refers to the defendants as having relied on the representations said to have been made by NAB by having conducted "lengthy negotiations with third parties to obtain regulatory approval" etc. I accept that there were ongoing discussions between Ms Caporale and various planning and other bodies. I do not accept that any of this occurred on the basis of any intimation from the NAB that they would not be insisting on their rights of recovery. The discussions had already commenced by the time Ms Caporale had spoken with Mr Vale in February 2007. Further I do not accept that the fact that they conducted such negotiations could, of itself, amount to any form of detrimental reliance sufficient to give rise to an estoppel (cf Walsh v Walsh [2012] NSWCA 57 at [14] per Meagher JA). 95Subparagraph 6(f)(vi) asserts that the estimated total value of the IETC project was "about $500 million". There is no evidence to support this contention. I do not know what it means. Even if its meaning was made clear and supported by evidence, I do not see how it could be relevant to the asserted claim. 96The result is that there is no evidence that the defendants suffered any relevant detriment by any alleged alteration of their position in reliance upon any assurance by NAB that it would defer or capitalise interest until a particular stage of the IETC project was reached. They have not provided any evidence to demonstrate what their financial affairs were and how, if at all, they were reorganised. They have not given any evidence as to what circumstances led to their ceasing to make interest payments in February 2007. They have not provided any evidence of what has occurred with the properties the subject of the NAB's securities in the meantime. Some of them appear to be residential properties. They may have been tenanted. There is no evidence as to what rental income was received in respect of those properties, and how those funds were applied. 97It follows from the above findings that the estoppel claim cannot succeed for the following reasons. 98First, the claim fails at the outset because I find that there was no representation of the kind contended for by the defendants, namely, that the NAB would permit the defendants not to pay their interest or principal instalments, but instead would permit interest to be deferred or capitalised until a particular stage of the development of the IETC project was reached. 99Second, even if I had accepted Ms Caporale's evidence as to what the various NAB officers had stated to her, I do not consider that they would establish the making of the pleaded representation. Any such representation must be "clear and unambiguous" (Foran v Wight [1989] HCA 51; 168 CLR 385 at 411.1 per Mason CJ, and Legione v Hateley [1983] HCA 11; 152 CLR 406 at 435 to 437). None of the statements that Ms Caporale attributes to the NAB officers involves any clear or unambiguous statements by them, or acceptance by them, that the interest and principal payments could be deferred until some future stage of the development of the IETC project. At most, they amounted to a statement that the NAB officers might consider any detailed proposal put forward by the defendants to allow a restructuring of their loans. 100Third, the defendants have not established any relevant form of reliance on any relevant representation. As I have explained, the only relevant act that was identified in the evidence as having taken place prior to Mr Hatter's statements in 2009 was exchange on the property at Dapto. It was Sappia that exchanged and the involvement of each or any of the defendants in the financing of Sappia to exchange was not explored. 101Fourth, there is no evidence that the defendants have suffered any detriment from NAB's (alleged) resiling in 2009 from what was said to be its earlier position that payments could be deferred until some future point in the development of the IETC (Walsh at [12]). This is particularly the case given the lapse of a further fourteen months between Mr Hatter's statement and the commencement of proceedings for recovery. The consequence is that it was not unconscionable for NAB to advise them in 2009 that it would pursue its enforcement rights, and then do so in June 2010. 102Accordingly, I reject the estoppel claims.

[12]

Conclusion and orders 103It follows from my rejection of the estoppels defences of each of the defendants that the NAB will succeed in each of its actions. 104In proceedings No 2010/150075, NAB sued Tommaso Caporale in respect of three loan facilities and two guarantees he gave in respect of the debts of Caporale Builders and Zippoz. The funds for the three loan facilities were advanced on 13 September 2004 ($280,000.00), 20 September 2004 ($1,400,000.00) and 19 June 2006 ($956,000.00). The funds he guaranteed were advanced to Caporale Builders on 19 January 2005 ($1,050,000.00) and Zippoz on 11 May 2005 ($1,080,000.00). As at 14 August 2012 the total amount owing was $6,247,562.00 with interest accruing at $1,112.85 daily. As at 31 August 2012 his total indebtedness is $6,266,480.45. There will be a judgment in favour of NAB for that amount. 105These loans were secured over eight properties owned by Tommaso Caporale. One of those properties has since been sold. I will enter judgment for possession of the remaining seven properties and grant the NAB leave to issue writs of possession. 106In proceedings No 2010/150085, NAB sued Rosa Caporale in respect of a loan facility for $1,760,000.00 which was advanced on 5 May 2004. As at 14 August 2012 the total amount owing was $2,365,089.00 with interest of $425.71 accruing daily. As at 31 August 2012 the total indebtedness is $2,372,326.07. There will be a judgment in favour of NAB for that amount. 107These loans were secured over three properties in Hurstville owned by Rosa Caporale. I will enter judgment for possession of those properties and grant the NAB leave to issue writs of possession. 108In proceedings No 2010/150096, NAB sued Giuseppe Caporale in respect of two loan facilities and a guarantee he gave in respect of the debt of Zippoz. The funds for the two loan facilities were advanced on 13 September 2004 ($335,000.00) and 23 November 2004 ($865,000.00). The funds he guaranteed were advanced to Zippoz on 11 May 2005 ($1,080,000.00). As at 14 August 2012 the total amount owing was $3,047,913.00 with interest of $537.56 accruing daily. As at 31 August 2012 his total indebtedness in respect of these loan facilities and guarantee is $3,057,051.50. There will be a judgment in favour of NAB for that amount. 109These loans were secured over two properties owned by Giuseppe Caporale. I will enter judgment for possession of those properties and grant the NAB leave to issue writs of possession. 110In proceedings No 2010/150119, NAB sued Caporale Builders in respect of a loan facility for $1,050,000.00 which was advanced on 19 January 2005. As at 14 August 2012 the total amount owing was $1,390,541.00 with interest of $250.29 accruing daily. As at 31 August 2012 the total indebtedness is $1,394,795.93. There will be a judgment in favour of NAB for that amount. 111These loans were secured over a property at Darkes Forest (near Helensburgh). I will enter judgment for possession of that property and grant the NAB leave to issue a writ of possession. 112In proceedings No 2010/150149, NAB sued Zippoz in respect of a loan facility for $1,080,000.00 which was advanced on 9 May 2005. As at 14 August 2012 the total amount owing was $1,420,390.00 with interest of $247.88 accruing daily. As at 31 August 2012 the total indebtedness is $1,424, 603.96. There will be a judgment in favour of NAB for that amount. 113These loans were secured over a property at Lilli Pilli. I will enter judgment for possession of that property and grant the NAB leave to issue a writ of possession. 114In proceedings No 2012/18301 NAB sued Giuseppe Caporale in respect of a loan facility provided to him on 8 July 2004 in the amount of $500,000.00. As at 14 August 2012 the amount owing on that loan was $471,527.00 with interest of $87.97 accruing daily. As at 31 August 2012 the total indebtedness is $473,022.49. There will be a judgment in favour of NAB for that amount. This loan was secured over another property owned by Giuseppe Caporale at Hurstville. I will enter judgment for possession of that property and grant the NAB leave to issue a writ of possession. 115I will order each defendant to pay the plaintiff's costs of the proceedings against them. If either party seeks a variation to that order or an additional costs order then they should file and serve any such application together with submissions in support, which are not to exceed five pages, within fourteen days hereof.

[13]

Orders 116In proceedings No 2010/150075, I order: (1)Judgment for the Plaintiff in the sum of $6,266,480.45; (2)Judgment for the Plaintiff for possession of the following properties: (a)whole of the land described in Certificate of Title, Folio Identifier 8/SP2696 and 19/SP2696 known as Unit 8, 49 Dennis Street, Lakemba, NSW; (b)whole of the land described in Certificate of Title, Folio Identifier 126/SP46507 and 165/SP46507 known as Unit 914, 28 Macleay Street, Elizabeth Bay (also known as Unit 914, 28 Macleay Street, Potts Point) NSW: (c)whole of the land described in Certificate of Title, Folio Identifier 159/SP11960 and 116/SP11960 known as Unit 1004, 212218 Bondi Road, Bondi, NSW; (d)whole of the land described in Certificate of Title, Folio Identifier 31/SP1297 known as Unit 31, 66 Bayswater Road, Rushcutters Bay, NSW; (e)whole of the land described in Certificate of Title, Folio Identifier 62/SP67837 known as Unit 62, 17 MacMahon Street, Hurstville, NSW; (f)whole of the land described in Certificate of Title, Folio Identifier 64/SP67837 known as Unit 64, 17 MacMahon Street, Hurstville, NSW; and (g)whole of the land described in Certificate of Title, Folio Identifier 67/SP67837 known as Unit 67, 17 MacMahon Street, Hurstville, NSW; (3)The Plaintiff have leave to issue a writ of possession in respect of each property the subject of order (2); (4)The Defendant pay the Plaintiff's costs of the proceedings. (5)If either party seeks to apply to vary order (4) or an additional costs order then any such application together with submissions in support which are not to exceed five pages are to be filed and served within 14 days hereof. 117In proceedings No 2010/150085, I order: (1)Judgment for the Plaintiff in the sum of $2,372,326.07. (2)Judgment for the Plaintiff for possession of the following properties: (a)whole of the land described in Certificate of Title, Folio Identifier 25/SP67836 known as Unit 25, 17 MacMahon Street, Hurstville, NSW; (b)whole of the land described in Certificate of Title, Folio Identifier 68/SP67837 known as Unit 68, 17 MacMahon Street, Hurstville, NSW; and (c)whole of the land described in Certificate of Title, Folio Identifier 69/SP67837 known as Unit 69, 17 MacMahon Street, Hurstville, NSW; (3)The Plaintiff have leave to issue a writ of possession in respect of each property the subject of order (2); (4)The Defendant pay the Plaintiff's costs of the proceedings. (5)If either party seeks to apply to vary order (4) or an additional costs order then any such application together with submissions in support which are not to exceed five pages are to be filed and served within 14 days hereof. 118In proceedings No 2010/150096, I order: (1)Judgment for the Plaintiff in the sum of $3,057,051.50. (2)Judgment for the Plaintiff for possession of the following properties: (a)whole of the land described in Certificate of Title, Folio Identifier 59/SP67837 known as Unit 59, 17 MacMahon Street, Hurstville, NSW; and (b)whole of the land described in Certificate of Title, Folio Identifier 65/SP67837 known as Unit 65, 17 MacMahon Street, Hurstville, NSW; (3)The Plaintiff have leave to issue a writ of possession in respect of each property the subject of order (2); (4)The Defendant pay the Plaintiff's costs of the proceedings. (5)If either party seeks to apply to vary order (4) or an additional costs order then any such application together with submissions in support which are not to exceed five pages are to be filed and served within 14 days hereof. 119In proceedings No 2010/150119, I order: (1)Judgment for the Plaintiff in the sum of $1,394,795.93. (2)Judgment for the Plaintiff for possession of the whole of land described in Certificate of Title, Folio Identifier 750/752033 known as 750 Princes Highway, Darkes Forest, also known as Lot 750 Princes Highway, Helensburgh, NSW. (3)The Plaintiff have leave to issue a writ of possession in respect of each property the subject of order (2); (4)The Defendant pay the Plaintiff's costs of the proceedings. (5)If either party seeks to apply to vary order (4) or an additional costs order then any such application together with submissions in support which are not to exceed five pages are to be filed and served within 14 days hereof. 120In proceedings No 2010/150149, I order: (1)Judgment for the Plaintiff in the sum of $1,424, 603.96. (2)Judgment for the Plaintiff for possession of the whole of land described in Certificate of Title, Folio Identifier 23/579793 known as 701 Port Hacking Road, Dolans Bay, also known as Lot 701 Port Hacking Road, Lilli Pilli, NSW. (3)The Plaintiff have leave to issue a writ of possession in respect of the property the subject of order (2); (4)The Defendant pay the Plaintiff's costs of the proceedings. (5)If either party seeks to apply to vary order (4) or an additional costs order then any such application together with submissions in support which are not to exceed five pages are to be filed and served within 14 days hereof. 121In proceedings No 2012/018301, I order: (1)Judgment for the Plaintiff in the sum of $473,022.49. (2)Judgment for the Plaintiff for possession of the whole of land described in Certificate of Title, Folio Identifier 66/SP67837 known as 66/13-17 MacMahon Street Hurstville NSW. (3)The Plaintiff have leave to issue a writ of possession in respect of the property the subject of order (2); (4)The Defendant pay the Plaintiff's costs of the proceedings. (5)If either party seeks to apply to vary order (4) or an additional costs order then any such application together with submissions in support which are not to exceed five pages are to be filed and served within 14 days hereof.

National Australia Bank v Caporale

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (14 paragraphs)

Parties

Cases Cited (5)

Cited By (1)