Bank of Western Australia v Renato Licata [2012] NSWSC 78

Bank of Western Australia v Renato Licata [2012] NSWSC 78

The alleged deficiencies in the exercise of the power of sale were not made out. It was not required of the Bank or its agents to incur expenditure to seek to revive development consents or carry out subdivision works; the Bank and its agents reasonably acted on advice about disclosure; relevant information was available to serious purchasers; advertising the sale as a mortgagee sale was open on the advice of experienced agents; and the M7 complaint was not pressed. The defendants failed to prove a market value above the $8 million plus GST sale price because their valuation evidence was rejected and the Bank's valuation evidence was accepted. There was no evidence of unconscientious or...

Jurisdiction
Australia
Judgment Date
17 February 2012
Procedural Posture
Guarantee and Indemnity Enforcement With Cross Claims Concerning Mortgagee Sale / Principal Judgment After Hearing
Outcome
Judgment for the plaintiff against each defendant for $10,352,085.56, stayed until 27 February 2012; judgment for the cross-defendant on each cross-claim.
Legal Topics
['enforcement of Guarantees' 'mortgagee Power of Sale' "controller's Duty of Care Under S 420 a Corporations Act 2001 (cth)" 'market Value of Secured Property' 'unconscionable Conduct Under ASIC Act 2001 (cth)' 'set Off Under Guarantees']
['guarantee and Indemnity' 'banking and Finance' 'corporations' 'equity' 'property'] ['enforcement of Guarantees' 'mortgagee Power of Sale' "controller's Duty of Care Under S 420 a Corporations Act 2001 (cth)" 'market Value of Secured Property' 'unconscionable Conduct Under ASIC Act 2001 (cth)' 'set Off Under Guarantees']

Case Brief

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Procedural Posture

Guarantee and Indemnity Enforcement With Cross Claims Concerning Mortgagee Sale / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the Bank was entitled to judgment under the guarantees against the defendants.' 'Whether the Bank or its agents breached an obligation to exercise the power of sale in good faith or the standard specified in s 420A of the Corporations Act 2001 (Cth).' 'Whether alleged failures in the marketing campaign, including non-disclosure of lapsed development consents, Coles and Aldi leasing matters, and advertising as a mortgagee sale, affected the sale.' 'Whether the land was sold at less than market value.' 'Whether the Bank engaged in unconscionable conduct within ss 12CA, 12CB and/or 12CC of the ASIC Act 2001 (Cth).' 'Whether the defendants or cross-claimants could reduce liability or recover damages under the guarantees.']

Ratio Decidendi

The alleged deficiencies in the exercise of the power of sale were not made out. It was not required of the Bank or its agents to incur expenditure to seek to revive development consents or carry out subdivision works; the Bank and its agents reasonably acted on advice about disclosure; relevant information was available to serious purchasers; advertising the sale as a mortgagee sale was open on the advice of experienced agents; and the M7 complaint was not pressed. The defendants failed to prove a market value above the $8 million plus GST sale price because their valuation evidence was rejected and the Bank's valuation evidence was accepted. There was no evidence of unconscientious or...

Court Disposition

Judgment for the plaintiff against each defendant for $10,352,085.56, stayed until 27 February 2012; judgment for the cross-defendant on each cross-claim.

Orders

  • ['I direct entry of judgment for the plaintiff against each defendant in the sum of $10,352,085.56.' 'I direct that those judgments take effect from 10 February 2012.' 'I direct entry of judgment for the cross-defendant on each cross-claim.' 'I order that the exhibits be handed out.' 'I note that the plaintiff does...