Durkin v Pioneer Permanent Building Society Limited (ACN 087 652 042) [2003] FCA 419

Durkin v Pioneer Permanent Building Society Limited (ACN 087 652 042) [2003] FCA 419

Assuming in the applicants' favour that a loan contract existed, any obligation of the first respondent to advance funds was conditional upon satisfaction of the valuation condition. The appraisals and the independent valuation did not support or confirm the Quinlan valuation, and correspondence providing limited carry on finance did not waive that condition or affirm an unconditional obligation to lend. The pleaded contract claim therefore could not succeed. The negligence claim also failed because no actionable duty or breach arose from requesting market and forced sale valuations or from not accepting Quinlan's dissatisfaction with the independent valuation. The s 52 claim failed...

Jurisdiction
Australia
Judgment Date
09 May 2003
Procedural Posture
Application Alleging Breach of Contract, Negligence, Misleading or Deceptive Conduct and Unconscionable Conduct; First Respondent's Motion for Dismissal or Strike Out / Motion by the First Respondent Under O 20 R 2 or Alternatively O 11 R 16; Statement of Claim as Amended on 27 February 2003 Considered as Against the First Respondent
Outcome
The statement of claim as amended on 27 February 2003 was struck out as against the first respondent.
Legal Topics
['strike Out of Statement of Claim' 'dismissal of Proceedings' 'conditional Loan Offer' 'valuation Condition' 'waiver and Affirmation' 'repudiation and Termination' 'implied Term to Act Reasonably and Honestly' 'negligence in Valuation Instructions' 'misleading or Deceptive Conduct Under S 52 Trade Practices Act 1974 (cth)' 'unconscionable Conduct Under S 51 AA Trade Practices Act 1974 (cth)' 'special Disadvantage' 'unequal Bargaining Position']
['procedure' 'contract' 'torts' 'trade Practices'] ['strike Out of Statement of Claim' 'dismissal of Proceedings' 'conditional Loan Offer' 'valuation Condition' 'waiver and Affirmation' 'repudiation and Termination' 'implied Term to Act Reasonably and Honestly' 'negligence in Valuation Instructions' 'misleading or Deceptive Conduct Under S 52 Trade Practices Act 1974 (cth)' 'unconscionable Conduct Under S 51 AA Trade Practices Act 1974 (cth)' 'special Disadvantage' 'unequal Bargaining Position']

Case Brief

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Procedural Posture

Application Alleging Breach of Contract, Negligence, Misleading or Deceptive Conduct and Unconscionable Conduct; First Respondent's Motion for Dismissal or Strike Out / Motion by the First Respondent Under O 20 R 2 or Alternatively O 11 R 16; Statement of Claim as Amended on 27 February 2003 Considered as Against the First Respondent

Legal Issues

  1. 1 ['Whether the proceedings against the first respondent should be dismissed under O 20 r 2 or the statement of claim struck out under O 11 r 16.' 'Whether a binding loan contract existed and, if so, whether the first respondent was obliged to advance funds despite the valuation condition not being satisfied.' 'Whether the first respondent affirmed the loan contract or waived the valuation condition by correspondence or by providing carry on finance.' 'Whether the first respondent breached an implied term to act reasonably and honestly by seeking an independent valuation, instructing the valuer as it did, relying on lending guidelines, or withdrawing the offer of finance.' 'Whether the first respondent owed and breached a duty of care in giving valuation instructions or failing to act on dissatisfaction with the valuation.' 'Whether alleged oral and written statements about funding and settlement of the loan constituted misleading or deceptive conduct under s 52 of the Trade Practices Act 1974 (Cth).' 'Whether withdrawal of the offer of finance was unconscionable conduct under s 51AA of the Trade Practices Act 1974 (Cth).']

Ratio Decidendi

Assuming in the applicants' favour that a loan contract existed, any obligation of the first respondent to advance funds was conditional upon satisfaction of the valuation condition. The appraisals and the independent valuation did not support or confirm the Quinlan valuation, and correspondence providing limited carry on finance did not waive that condition or affirm an unconditional obligation to lend. The pleaded contract claim therefore could not succeed. The negligence claim also failed because no actionable duty or breach arose from requesting market and forced sale valuations or from not accepting Quinlan's dissatisfaction with the independent valuation. The s 52 claim failed...

Court Disposition

The statement of claim as amended on 27 February 2003 was struck out as against the first respondent.

Orders

  • ['The statement of claim as amended on 27 February 2003 be struck out as against the first respondent.' 'The Court would hear submissions as to costs and other orders.']