Bendigo and Adelaide Bank Ltd v Howard [2018] NSWSC 383

Bendigo and Adelaide Bank Ltd v Howard [2018] NSWSC 383

The summons was dismissed because the plaintiff failed to demonstrate any appealable error of law. The Magistrate was entitled to find that the finance documents did not plainly nominate ABL Nominees Pty Ltd as lender by misnomer, that Great Southern Finance Pty Ltd lacked authority under the power of attorney to...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
28 March 2018
Procedural Posture
Appeal From Local Court of Nsw, Civil Jurisdiction / Appeal as of Right on Questions of Law From Decision of Soars LCM Dated 23 August 2017
Outcome
Summons dismissed; plaintiff to pay the defendant's costs.
Legal Topics
['appeal From Local Court on Question of Law' 'managed Investment Scheme Finance' 'construction of Finance Application and Loan Deed' 'misnomer and Rectification by Construction' 'power of Attorney and Agent Authority' 'proof of Advance of Loan Funds' 'assignment of Loan Rights' 'statute Barred Claim']
['appeals' 'contracts' 'agency' 'assignment' 'limitation of Actions'] ['appeal From Local Court on Question of Law' 'managed Investment Scheme Finance' 'construction of Finance Application and Loan Deed' 'misnomer and Rectification by Construction' 'power of Attorney and Agent Authority' 'proof of Advance of Loan Funds' 'assignment of Loan Rights' 'statute Barred Claim']

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal From Local Court of Nsw, Civil Jurisdiction / Appeal as of Right on Questions of Law From Decision of Soars LCM Dated 23 August 2017

Legal Issues

  1. 1 ['Whether the asserted grounds of appeal disclosed errors of law rather than factual or mixed questions for which leave had not been sought.' "Whether the defendant's finance documents, properly construed, nominated ABL Nominees Pty Ltd rather than Great Southern Finance Pty Ltd as lender by reason of mistake or misnomer." "Whether Great Southern Finance Pty Ltd had authority under the power of attorney to execute a loan deed on the defendant's behalf naming ABL Nominees Pty Ltd as lender, and whether any want of authority was ratified." "Whether the plaintiff proved that ABL Nominees Pty Ltd advanced funds for the defendant's investment and that the loan was assigned to Adelaide Bank Ltd and then to the plaintiff." "Whether the plaintiff's claim was founded on an enforceable deed and was not statute-barred."]

Ratio Decidendi

The summons was dismissed because the plaintiff failed to demonstrate any appealable error of law. The Magistrate was entitled to find that the finance documents did not plainly nominate ABL Nominees Pty Ltd as lender by misnomer, that Great Southern Finance Pty Ltd lacked authority under the power of attorney to execute a loan deed with ABL Nominees Pty Ltd as lender, that the defendant did not ratify that act, and that the plaintiff failed to prove an advance of funds by ABL Nominees Pty Ltd. The issues concerning advance of funds and assignment were factual or at best mixed questions for which leave had not been sought, and the plaintiff had not discharged its onus.

Court Disposition

Summons dismissed; plaintiff to pay the defendant's costs.

Orders

  • ['Summons dismissed.' "The plaintiff is to pay the defendant's costs."]