ANZ Bank v Ciavarella [2002] NSWSC 1186

ANZ Bank v Ciavarella [2002] NSWSC 1186

There was a valid and binding agreement concluded between the parties on 23 March 2001 based on the exchange of correspondence, with express and implied terms regarding the postponement of repayment and good faith; the bank's issuing of demand, appointment of a receiver, and commencement of proceedings prior to 31...

Source-derived case information.

Parties
Plaintiff: Australia and New Zealand Banking Group Limited; Defendant/cross Claimant: Anthony Mark Ciavarella; Defendant/cross Claimant: Ors (other Ciavarella family members)
Jurisdiction
Australia
Judgment Date
13 December 2002
Procedural Posture
Civil/commercial / Liability Determination on Cross Claim
Outcome
Declarations for cross-claimant; receiver's appointment invalid; injunction issued.
Legal Topics
Formation of Contract, Enforceability of Settlement Agreements, Farm Debt Mediation, Implied Terms in Contracts, Receivership, Mortgage Enforcement
Contract Law Banking and Finance Equity Formation of Contract Enforceability of Settlement Agreements Farm Debt Mediation Implied Terms in Contracts Receivership +1 more

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Summary, issues, holding and outcome

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Parties

Australia and New Zealand Banking Group Limited

Plaintiff

Anthony Mark Ciavarella

Defendant/cross Claimant

Ors (other Ciavarella family members)

Defendant/cross Claimant

Procedural Posture

Civil/commercial / Liability Determination on Cross Claim

Legal Issues

  1. 1 Whether an enforceable contract arose from the exchange of correspondence between the parties after mediation
  2. 2 Whether documents arising from or following mediation are admissible in evidence under the Farm Debt Mediation Act 1994 s 15
  3. 3 What terms can be implied into the agreement

Ratio Decidendi

There was a valid and binding agreement concluded between the parties on 23 March 2001 based on the exchange of correspondence, with express and implied terms regarding the postponement of repayment and good faith; the bank's issuing of demand, appointment of a receiver, and commencement of proceedings prior to 31 December 2002 constituted breaches of that agreement.

Court Disposition

Declarations for cross-claimant; receiver's appointment invalid; injunction issued.

Orders

  • I declare that a valid and binding agreement was made on 23 March 2001 between the cross-claimants and the first cross-defendant for repayment of advances then made by the first cross-defendant to the first cross-claimant.
  • I declare that the appointment by the first cross-defendant of the second cross-defendant on 27 March 2001 as Receiver pursuant to the mortgages between the cross-claimants and cross-defendants was invalid.