Deangrove Pty Ltd v Commonwealth Bank of Australia [2003] FCA 470

Deangrove Pty Ltd v Commonwealth Bank of Australia [2003] FCA 470

The applicants failed to establish the factual foundation of their case. The only representation proved was that Mr Hayashi's solicitor had provided a document satisfying the CBA that the proposed sales of 36 units would go ahead, giving the bank sufficient comfort to proceed with drawdown; that representation was true. Mr Cleary did not take over negotiations, did not secure or represent an irrevocable undertaking, and did not say that the Japanese interests were tied up. Deangrove and Mr Jeans did not rely on anything said by Mr Cleary in deciding to execute the security documents, draw down funds or complete the land purchase. Accordingly, no misleading or deceptive conduct or...

Jurisdiction
Australia
Judgment Date
16 May 2003
Procedural Posture
Application Seeking Relief Under the Trade Practices Act 1974 (cth) and General Law to Set Aside or Avoid an Equitable Charge and Personal Guarantee; Respondent Bank Cross Claim for Amounts Due Under the Loan Facility and Guarantee / Final Judgment After Trial
Outcome
Application dismissed; judgment entered for Commonwealth Bank of Australia on the cross-claim against Deangrove Pty Limited and John Anthony Jeans.
Legal Topics
['misleading or Deceptive Conduct' 'unconscionable Conduct' 'equitable Charge' 'personal Guarantee' 'loan Facility' 'reliance on Representations' 'witness Credit']
['trade Practices' 'banking and Finance' 'equity' 'contract'] ['misleading or Deceptive Conduct' 'unconscionable Conduct' 'equitable Charge' 'personal Guarantee' 'loan Facility' 'reliance on Representations' 'witness Credit']

Case Brief

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Procedural Posture

Application Seeking Relief Under the Trade Practices Act 1974 (cth) and General Law to Set Aside or Avoid an Equitable Charge and Personal Guarantee; Respondent Bank Cross Claim for Amounts Due Under the Loan Facility and Guarantee / Final Judgment After Trial

Legal Issues

  1. 1 ['Whether the Commonwealth Bank of Australia, through Mr Cleary, made representations that an irrevocable commitment or undertaking had been obtained from Japanese interests to purchase 36 units in the Cairns Beach Resort' 'Whether the bank took over or conducted negotiations with the Japanese interests or their solicitor on behalf of Deangrove' 'Whether Deangrove and Mr Jeans relied on any representation by the bank when executing security documents, drawing down funds or completing the purchase of the Holloways Beach site' 'Whether the bank engaged in misleading or deceptive conduct or unconscionable conduct' 'Whether the bank was entitled to judgment on its cross-claim under the equitable mortgage and Guarantee']

Ratio Decidendi

The applicants failed to establish the factual foundation of their case. The only representation proved was that Mr Hayashi's solicitor had provided a document satisfying the CBA that the proposed sales of 36 units would go ahead, giving the bank sufficient comfort to proceed with drawdown; that representation was true. Mr Cleary did not take over negotiations, did not secure or represent an irrevocable undertaking, and did not say that the Japanese interests were tied up. Deangrove and Mr Jeans did not rely on anything said by Mr Cleary in deciding to execute the security documents, draw down funds or complete the land purchase. Accordingly, no misleading or deceptive conduct or...

Court Disposition

Application dismissed; judgment entered for Commonwealth Bank of Australia on the cross-claim against Deangrove Pty Limited and John Anthony Jeans.

Orders

  • ['The application be dismissed.' 'Judgment be entered on the cross-claim against the first cross respondent and the second cross respondent in the sum of $4,749,813.30.' 'The respondent/cross-claimant file submissions on costs within seven days.' 'The applicants/cross-respondents file any written submissions on...