Commonwealth Bank of Australia v Hollier & Ors [2001] NSWSC 805

Commonwealth Bank of Australia v Hollier & Ors [2001] NSWSC 805

All defences to the Bank's claim for repayment of the facility or under the mortgage fail. No representation with the pleaded effect was found to have been made by the Bank to the Holliers; they did not rely on any such statement and are liable to repay as claimed. No condition precedent or term—express or implied—made liability of syndicate members conditional on particular guarantees that were never given. Claims that McDonald Johnson breached fiduciary or other duty fail, as the scope of retainer was limited to conveyancing and the claim is not established. The Holliers' claim against Maddens for failure to value 'variations' in the Holliers' units succeeds to the extent of overpayment...

Parties
Plaintiff: Commonwealth Bank of Australia; 1st Defendant / Cross Claimant: William Edward Hollier; 2nd Defendant / Cross Claimant: Janifer Lee Hollier; 3rd Defendant: George Smith Holliday; 4th Defendant: George William Sanders; 5th Defendant: Stephen David McCloy; 6th Defendant: Cancarra Pty Ltd; 7th Defendant: Cloudgard No 43 Pty Ltd; 8th Defendant: Ninot Pty Ltd; 9th Defendant: Miltup Pty Ltd; 10th Defendant: Walenora Pty Ltd; 11th Defendant: Stenoak Pty Ltd; 12th Defendant: Ian Allibon Plumbing Pty Ltd; 13th Defendant: Bruce John Sanders; 14th Defendant: Ian Paul Allibon; 15th Defendant: Caron Grace Allibon; 16th Defendant: Graham Erland McCloy; 17th Defendant: Jennifer Joan McCloy; 18th Defendant: Reginald Patrick Flannery; 19th Defendant: Victoria Boyd; 20th Defendant: James Mercer Anderson; 21st Defendant: Yvonne Lillian Anderson; 22nd Defendant: Matthew James Bliss; 23rd Defendant: Catherine Margaret Bliss; Cross Claimants: WE Hollier & JL Hollier; Cross Defendants to 1st Cross Claim: GJ Leonard & Leonard Consultants Pty Ltd & CJ Sneddon & SN Roxby t/as Maxim Consulting Corporate Advisors; 2nd Cross Claimants: WE Hollier and JL Hollier; Cross Defendant to 2nd Cross Claim: Cancarra Pty Ltd; 3rd Cross Claimants: GS Holliday, GW Sanders, SD McCloy, Cancarra Pty Ltd, Cloudgard No 43 Pty Ltd, Ninot Pty Ltd, Miltup Pty Ltd, Walenora Pty Ltd, Stenoak Pty Ltd, Ian Allibon Plumbing Pty Ltd, BJ Sanders, IP Allibon, CG Allibon, GE McCloy, JJ McCloy, RP Flannery, VBoyd, JM Anderson, YL Anderson, MJ Bliss, CM Bliss; Cross Defendants to 3rd Cross Claim: WE Hollier, JL Hollier; 4th Cross Claimants: GJ Leonard & Leonard Consultants Pty Ltd & CJ Sneddon & CJ Sneddon & SN Roxby t/as Maxim Consulting Corporate Advisors; Cross Defendants to 4th Cross Claim / Maddens: S Madden & Madden & Associates Pty Ltd; Cross Defendant to 5th Cross Claim: Commonwealth Bank of Australia
Jurisdiction
Australia
Judgment Date
13 September 2001
Procedural Posture
Civil (equity/commercial) / Final Judgment – Principal Decision (subject to Further Submissions/orders)
Outcome
Bank succeeds in its claims against all defendants save those not pursued at trial; cross-claims by Holliers, general defendants, and against professional parties (McDonald Johnson, Maddens) largely fail, save as to limited over-certification liability by Maddens. Orders to be made per submissions and short...
Legal Topics
Guarantees, Mortgages, Breach of Contract, Negligence by Professionals, Trade Practices Misrepresentation, Fiduciary Duties, Remedies for Misleading or Deceptive Conduct
Banking and Finance Law Contract Law Equity Torts Professional Negligence Trade Practices Guarantees Mortgages +5 more

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Parties

Commonwealth Bank of Australia

Plaintiff

William Edward Hollier

1st Defendant / Cross Claimant

Janifer Lee Hollier

2nd Defendant / Cross Claimant

George Smith Holliday

3rd Defendant

George William Sanders

4th Defendant

Stephen David McCloy

5th Defendant

Cancarra Pty Ltd

6th Defendant

Cloudgard No 43 Pty Ltd

7th Defendant

Ninot Pty Ltd

8th Defendant

Miltup Pty Ltd

9th Defendant

Walenora Pty Ltd

10th Defendant

Stenoak Pty Ltd

11th Defendant

Ian Allibon Plumbing Pty Ltd

12th Defendant

Bruce John Sanders

13th Defendant

Ian Paul Allibon

14th Defendant

Caron Grace Allibon

15th Defendant

Graham Erland McCloy

16th Defendant

Jennifer Joan McCloy

17th Defendant

Reginald Patrick Flannery

18th Defendant

Victoria Boyd

19th Defendant

James Mercer Anderson

20th Defendant

Yvonne Lillian Anderson

21st Defendant

Matthew James Bliss

22nd Defendant

Catherine Margaret Bliss

23rd Defendant

WE Hollier & JL Hollier

Cross Claimants

GJ Leonard & Leonard Consultants Pty Ltd & CJ Sneddon & SN Roxby t/as Maxim Consulting Corporate Advisors

Cross Defendants to 1st Cross Claim

WE Hollier and JL Hollier

2nd Cross Claimants

Cancarra Pty Ltd

Cross Defendant to 2nd Cross Claim

GS Holliday, GW Sanders, SD McCloy, Cancarra Pty Ltd, Cloudgard No 43 Pty Ltd, Ninot Pty Ltd, Miltup Pty Ltd, Walenora Pty Ltd, Stenoak Pty Ltd, Ian Allibon Plumbing Pty Ltd, BJ Sanders, IP Allibon, CG Allibon, GE McCloy, JJ McCloy, RP Flannery, VBoyd, JM Anderson, YL Anderson, MJ Bliss, CM Bliss

3rd Cross Claimants

WE Hollier, JL Hollier

Cross Defendants to 3rd Cross Claim

GJ Leonard & Leonard Consultants Pty Ltd & CJ Sneddon & CJ Sneddon & SN Roxby t/as Maxim Consulting Corporate Advisors

4th Cross Claimants

S Madden & Madden & Associates Pty Ltd

Cross Defendants to 4th Cross Claim / Maddens

Commonwealth Bank of Australia

Cross Defendant to 5th Cross Claim

Procedural Posture

Civil (equity/commercial) / Final Judgment – Principal Decision (subject to Further Submissions/orders)

Legal Issues

  1. 1 Whether the Holliers or general defendants have a defence to the Bank's claim for recovery under the facility and mortgage;
  2. 2 Whether representations were made by the Bank as to the conduct of progress claim inspections and the release of building funds;
  3. 3 Whether the amendment to the required guarantees precluded liability of syndicate members;

Ratio Decidendi

All defences to the Bank's claim for repayment of the facility or under the mortgage fail. No representation with the pleaded effect was found to have been made by the Bank to the Holliers; they did not rely on any such statement and are liable to repay as claimed. No condition precedent or term—express or implied—made liability of syndicate members conditional on particular guarantees that were never given. Claims that McDonald Johnson breached fiduciary or other duty fail, as the scope of retainer was limited to conveyancing and the claim is not established. The Holliers' claim against Maddens for failure to value 'variations' in the Holliers' units succeeds to the extent of overpayment...

Court Disposition

Bank succeeds in its claims against all defendants save those not pursued at trial; cross-claims by Holliers, general defendants, and against professional parties (McDonald Johnson, Maddens) largely fail, save as to limited over-certification liability by Maddens. Orders to be made per submissions and short...

Orders

  • Plaintiff to prepare and circulate draft orders to parties prior to relisting.
  • Holliers to complete orders between themselves, Maddens and general defendants, and circulate.