Commonwealth Bank of Australia v ACES Sogutlu Holdings Pty Ltd & Ors [2013] NSWSC 1184

Supreme Court New South Wales

Medium Neutral Citation: Commonwealth Bank of Australia v ACES Sogutlu Holdings Pty Ltd & Ors [2013] NSWSC 1184 Hearing dates: 27, 28 May 2013; 6 June 2013 Decision date: 30 August 2013 Jurisdiction: Equity Division Before: Young AJ Decision: 1. Verdict for the plaintiff for $132,838.18 plus interest. 2. Cross-claim dismissed. 3. Defendants and cross-claimants to pay the costs of the plaintiff. Catchwords: MORTGAGE- obligations on Mortgagee when exercising power of sale. Legislation Cited: Corporations Act 2001 (Cth) Real Property Act 1900 Trade Practices Act 1974 Cases Cited: Cuckmere Brick Co Ltd v Mutual Finance Co Ltd [1971] Ch 949 Meretz Investments NV v ACP Ltd [2007] Ch197 Suncorp-Metway Ltd v Nam Property Holdings Pty Ltd [2010] NSWSC 1078 Texts Cited: Butterworths Annotated Conveyancing and Real Property Legislation 2012-2013 Tyler, Croft and Young, Fisher & Lightwood Law of Mortgages, 2nd Aust ed, (2005) Category: Principal judgment Parties: Commonwealth Bank of Australia (Plaintiff) ACES Sogutlu Holdings Pty Ltd & Ors Erwan Sogutlu Ceyser Pty Ltd (Defendants and Cross-Claimants J Charara (Cross-Claimant) Representation: Counsel: DF Villa (Plaintiff) Solicitors: Gadens Lawyers (Plaintiff) J Charara (self represented - Defendants) File Number(s): 2012/208480 Publication restriction: Nil

Judgment 1These proceedings were originally commenced in the District Court on 4 July 2012 when the Commonwealth Bank of Australia ("the Bank") sued for the deficiency owing under a mortgage after the sale of the mortgaged property and realisation of other securities. 2There are three defendants to the claim. The mortgagor (first defendant and two guarantors), Ercan Sogutlu (second defendant) and Ceyser Pty Ltd (third defendant). 3There was an extra guarantor of the Bank's debt, namely Delbyvale Pty Limited, a company wholly owned by Ercan Sogutlu. However this company went into liquidation and has never been a party to the present proceedings or a claim by the Bank under the Guarantee. 4The amount claimed in the cross-claim was $120,263.87 plus interest until judgment or payment. The first and third defendants put on a defence and the second defendant did so separately but the defences to which I will refer to in due course were virtually identical. 5A cross-claim was also filed. Ceyser Pty Ltd was the first cross-claimant, ACES Sogutlu Holdings Pty Ltd, the second cross-claimant, Ercan Sogutlu the third cross-clamant and Jamal Charara, the fourth cross-claimant. 6The background is given in the pleadings of the cross-claim as follows. Ceyser Pty Ltd purchased a property at Alexandria in 1998. Apparently at that time the Ceyser company was owned as to 45 per cent by Ercan Sogutlu and 55 per cent by his estranged wife, Aysen Sogutlu. 7In October 2006 ACES Sogutlu Pty Ltd, a company solely owned by Ercan Sogutlu wished to purchase a factory at Botany. It made application to the plaintiff for a loan of $1.5M to purchase the property. When applying for the loan Ercan Sogutlu says he informed the plaintiff that he owned 45 per cent of the Alexandria property and he says that the Bank agreed to take security only over 40 per cent of his 45 per cent share. However, the defendants say that the Bank actually not only took a mortgage over the whole of the Alexandria property, but also over the whole of the Botany property. 8The Alexandria property (sometimes referred to as the St Peters property) was leased commercially and rents were received from the tenant. 9The mortgagor defaulted and the Bank proceeded to realise the security. The defendants had made some attempts to sell the property but the sale procedure was taken over by the Bank who appointed reputable real estate agents to handle the realisation for it. The agents themselves obtained valuations of the land to be sold from a valuer. Mr Lo, a registered valuer who later gave evidence in the case, gave the estate agents a valuation before the sale took place. The Alexandria property was sold for $805,000. The Botany property realised $1.2M. The Bank reckoned that it received $166,560 net and that this was approximately $120,000 less than what it was owed. 10The defences are rather difficult to understand. What I will do is set them out roughly in order as they appear in the defence and cross-claim and then seek to rationalise them under a series of headings. (a) The loan facility should have been made to ACES only under its capacity as trustees for the Ceyser Hybrid Unit Trust but it was made in fact to ACES as trustee to the Sogutlu Family Trust therefore the plaintiffs action on the deed is void; (b) The loan was not made to the ACES Family Trust but rather to ACES in its own right; (c) The plaintiff was told when Botany was purchased its security would be limited to 40% of Ercan's 45% in Alexandria; (d) Ceyser only entered into the guarantee as trustee of the Ceyser Hybrid Unit Trust; (e) The plaintiff lured Ercan Sogutlu to sign the guarantee; (f) The plaintiff sold Alexandria below the market value of $1,060,000; (g) The plaintiff failed to account for $45,000, being $805,000 received and $761,000 in the accounts; (h) The plaintiff failed to give credit for rent received; (i) The plaintiff had no right to sell the Alexandria property; (j) The plaintiff sold Botany for $1,320,000 but only accounted for $1,075,692.51; (k) The plaintiff delayed selling Botany which caused loss; (l) The plaintiff charged interest on the loan caused by its own failure to sell Botany at the appropriate time; (m) The plaintiff paid its solicitors and estate agents excessive legal fees and charged the mortgagor accordingly; (n) The plaintiff sold Alexandria before the expiry of the Section 57 Notice; (o) The plaintiff as mortgagee did not act fairly; (p) The plaintiff acted in breach of the Real Property Act; (q) The plaintiff sold the properties below market value; (r) The plaintiff should have allowed the mortgagors to sell the properties; (s) The plaintiff was guilty of harsh and unconscionable conduct; (t) The plaintiff is guilty of false and misleading conduct in trade and commerce; (u) The plaintiff is liable in negligence; (v) The defendants seek damages of $1,036,386.91; (w) (waived and abandoned) The plaintiff unlawfully designated a bank account as the nominated account under the security documents which it was not; (x) Default interest was wrongly charged; (y) There was no proper accounting for GST; (z) There was inadequate advertising of the sales; 11It seems to me that I can best deal with these defences in the following groups and I will refer to them by this number plus the alphabetical designation already set out. 1. Defences (a), (b) and (c); 2. Defence (d); 3. Defences (f), (i), (k), (n), (o), (p), (q), (r), (s); 4. Defences (g), (h), (j), (l), (m), (x), (y), (z); 5. Defence (e); 6. The balance. 12The case came on for hearing before me on 27 and 28 May 2013 and 6 June 2013. Mr DF Villa of Counsel appeared for the Bank and Mr J Charara, the fourth cross-claimant, appeared with leave on behalf of all the defendants and cross-claimants. 13The fact that the defences were prepared by a non-lawyer has caused considerable problems. The principal problems arise from the fact that there are distinctions between duties at law and duties in equity which a lay person does not appreciate. 14The received learning in Australia is that when a mortgagor wishes to challenge an administration by a mortgagee who has taken possession or sold, the mortgagor has the remedy of account in equity and could only take one account, not bits of an account. Thus, what is required is that the accounting party present an account, the person attacking the accounts specify what are technically surcharges and falsifications, that is, items that should not appear in the account or items which are wrong in the account and then each item is tried. What has happened here is that there is some claim made by the cross-claimants in negligence at Common Law, some for false and misleading conduct under the Commonwealth Statutes and some claims for accounting as to rents and proceeds of sale etc. 15Insofar as there is a claim in Common Law and negligence with respect to the sale of the property the received wisdom is that the account does not lie. In England there is such an action see Cuckmere Brick Co Ltd v Mutual Finance Co Ltd [1971] Ch 949 but that has not been followed in Australia in any authoritative way. There are some Common Law actions under the Corporations Act 2001 (Cth) in certain situations but nothing like that has been mentioned during this case on either side. In Australia one looks to see the equitable duty of a mortgagee as to whether the equitable duty of a mortgagee has been satisfied rather than look to a duty of care, breach of a duty of care and damages flowing from it. 16What does a court do when a litigant in person raises matters that is completely ignorant as to whether they fall into the Equity or Common Law side of the court? It seems to me that the only way to proceed is to apply the equitable rules and decide the matter on the merits and indeed the approach of Mr Villa for the plaintiff seems to be in accordance with this. 17However there are some general equitable rules which have to be kept in mind and I will deal with these first before dealing with the detailed defences. 18What I am about to write is taken from the second edition of Fisher & Lightwood Law of Mortgages (Australian Edition). That is the standard English book on mortgages which Professor Tyler, Justice Croft and myself have reworked for Australian conditions. I quote from paragraph 20.21 omitting authorities: The power of sale is given to the mortgagee for his own benefit, to enable him to better realise his debt. ... The court may interfere with the exercise of the power at the instance of those interested in the proceeds of sale, but the court will not interfere merely to prevent its exercise contrary to the wishes of the mortgagor, or even (except on terms of payment of the mortgage debt) because the mortgagee is seeking some collateral object and not merely the payment of his debt. For the mortgagee is not a trustee of the power for the mortgagor, and the court will not inquire into his motives for exercising it. The duty of the mortgagee in respect of a sale itself was, formerly, generally put on the basis of good faith alone. ... But the Cuckmere principal is not being followed in Australia where the courts have preferred to retain the good faith test. Thus in Australia, the concept of a fiduciary duty of reasonable care is not used in the sense of the law of negligence, but in suggesting that bona fide steps must be taken not to sacrifice the mortgagor's interest. 19Paragraph 20.22 makes it clear that the mortgagee's duty of good faith is also owed to the guarantor of the mortgage debt. In paragraph 20.23 it is stated with authority: A mortgagee or a receiver may choose the time for sale at his own convenience and may sell when he considers it appropriate. The mortgagee is not bound to postpone the sale in the hope of obtaining a better price later. 20As Lewison J said in Meretz Investments NV v ACP Ltd [2007] Ch197 at 199 (affirmed by the Court of Appeal [2008] Ch 244): There is no requirement for a mortgagee to have "purity of purpose" in order thoroughly to sell the mortgaged property if the occasion has properly arisen. 21Sometimes one or more of these general propositions will be the answer to the defences that have been raised. If this occurs then I will not repeat what I have said here but merely refer to "the general propositions". 22I now turn to the specific defences. 1(a) 23There is confusion in the defendants' submissions presumably because of their unfamiliarity with the law. 24The Torrens system was specially designed to ensure that there is no reference to any trust or equitable interests save and accept of any situations such as where the caveat is lodged to protect the trust. It is not possible for a transfer or mortgage or title deed to be in favour of "X as trustee for the Y family trust". One of the principal purposes of the Torrens system was to ensure as much as possible that people dealing with the registered proprietor of land or an interest in land were not affixed with notice for some equitable interest. Accordingly, it was not possible for the dealing, namely the mortgages over Alexandria and Botany, to be made out in favour of any particular trust. 25Again, dealing with Corporation Law, a trust is not a corporation: it is not a separate legal entity. The defence/cross-claim on more than one occasion makes a statement such as 12(b) in the cross-claim: Family Trust was and it is capable to be sued and can sue in its capacity as ACES SOGUTLU HOLDINGS PTY LTD AS TRUSTEE FOR SOGUTLU FAMILY TRUST. 26There is another rule of law and that is that where there is a written document which is intended to be the end result of negotiations to perfect a transaction and a portion where that document is registered, that document alone is looked to as properly recording the transaction (and indeed under the Real Property Act is given indefeasibility) and one does not go back to look at what was said during negotiations. There are a couple of exceptions to this principle, such as where a mistake has been made in recording a parties' position and an Equity Court grants rectification of the document to record what was the intention. No application for rectification has been made in the present case. 27Accordingly we have mortgages made out to bind ACES Company and there is no mention of any trust on the register in accordance with law. The Bank certainly thought from the documents that it was making a loan on behalf of the ACES Sogutlu Family Trust. It may just be that the defendants intended the transaction to go some other way but I can not see anything reliable on the documents to reinforce that view. In any event it does not matter because whatever the situation, the documents were registered, the person liable to the Bank is ACES and whether it is responsible to the Sogutlu Family Trust or the Ceyser Hybrid Unit Trust that is a matter for ACES not for the Bank. There is nothing in this point that would require the Court to hold the mortgages as void. 1(b) 28This point can be disposed of simply by saying for the reasons given under 1A, the mortgage had to be under the name of ACES in its own right no matter what trust on which ACES may have held its interest in the land. 1(c) 29Again for the reasons given in paragraph 1A it really does not matter what the Bank was told in negotiations. Formal documents were drawn up, they were properly signed and the property registered and they are binding. 30However, I will deal with the negotiations between the defendants and Mr Mifsud of the Commonwealth Bank when I deal with section 6T - False and Misleading Conduct. 2(d) 31It is clear on the face of the document that Ceyser only entered into the guarantee as trustee of the Ceyser Hybrid Unit Trust. However that's not the end of the story. The letter of offer and approval of the financial facility made it clear that the Bank wanted a number of documents. One was the guarantee from Ceyser as trustee of the Ceyser Family Trust and Hybrid Unit Trust, the other was that there should be an equitable mortgage over all Ceyser's assets and this was to include a document signed by the unit holder and others making sure that the assets of the unit trust were included in what was charged to the Commonwealth Bank by way of equitable mortgage or charge. Aysen Sogutlu signed this. Mr Charara argued that there never were any unit holders in the Ceyser Hybrid Unit Trust but that does not seem to me to be of any significance because it was otherwise represented to the Bank. Aysen was that person. Accordingly, the proposition D is made out, but it really takes the defendants nowhere. 3 32I am about to deal with a whole series of related matters which I have listed earlier and I will now list the ones that I am about to consider. (f) The plaintiff sold the Alexandria property below market value. (i) The plaintiff had no right to sell that property. (k) The plaintiff delayed selling Botany. (n) The plaintiff sold Alexandria before the expiry of the Section 57 Notice. (o) The plaintiff as mortgagee did not act fairly. (p) The plaintiff acted in breach of the Real Property Act. (q) The plaintiff sold both properties below market value. (r) The plaintiff should have allowed the mortgagor to sell the properties. (s) The plaintiff was guilty of harsh and unconscionable conduct. 33The reason why the defendants say that the Bank had no right to sell the Alexandria property is that the loan for $1.5M was to purchase Botany. The Bank required security over Alexandria. The arrangement between Ercan Sogutlu and Stephen Mifsud was that Mr Mifsud was informed that although Alexandria was in the name of ACES it was beneficially owned 55 per cent by Mrs Aysen Sogutlu and 45 per cent by Ercan Sogutlu. 34Mr Sogutlu alleges that he and Mr Mifsud came to an agreement that as Aysen had to be paid out her 55 per cent in the near future, the Bank would merely put a caveat on the property as its security, when it was sold the caveat would be lifted, Aysen would get her 55 per cent and the Bank would have security over Ercan's 45 per cent or whatever it was transformed into. Mr Mifsud said he has no recollection of any such arrangement, he swore an affidavit to this effect, he was not cross-examined. Mr Charara says that as Mr Mifsud merely said he had no recollection, there was no denial and inferentially there was no need to cross-examine. However, Mr Howson, a superior bank officer, did give evidence and was cross-examined. He said he could find nothing on the CommSee computer system that would give any indication that there was any such arrangement. 35Accordingly it's very difficult for me to find such an arrangement on that evidence. However, I do not have to because the actual documents that were signed make it quite clear that there was a mortgage over the whole of the property in favour of the Bank. The Bank's documents of Offer of Loan make it quite clear that security was required over Alexandria as well as over Ceyser's interests in the property and the interests of any beneficiaries under the so-called Hybrid Unit Trust and the appropriate documents were signed. The Bank's copy of the consent of the unit holders is "PX 6" and the original and the original is "DX 8". There is nothing accordingly to support the defendants in point 3(i). 3(n) 36The Notice under section 57 of the Real Property Act with respect to Alexandria was dated 23 February 2011. It was received by the cross-claimants on 1 March 2011, the reason for the delay seeming to be that it was addressed to an address where the cross-claimants no longer were to be found. On 7 March 2011, the Bank appointed agents to sell the property and about the same time they changed the locks and took possession. 37The defendants say that because the one month had not expired before the Bank took this action, its actions were invalid. However section 57 only prevents a sale taking place until the notice has expired. It does not prevent the mortgagee taking possession or taking steps preliminary to a sale so long as the sale does not take place before the expiry of the notice (see Suncorp-Metway Ltd v Nam Property Holdings Pty Ltd [2010] NSWSC 1078 and Butterworths Annotated Conveyancing and Real Property Legislation 2012-2013 page 523). Accordingly there is nothing in this point. 383(r) alleges that the Bank should have allowed the mortgagors to sell. 39There is not much evidence about attempted sales for the mortgagor of Alexandria. In 2009 there was an agreement to sell the property for $950,000 plus GST but that fell through when the purchaser could not get her finance. 40As far as Botany is concerned things were far more advanced. A person described as the "neighbour" offered to buy the property for $1.5M. This was in October/November 2010. The mortgagors kept Mr Howson informed of the progress. On 18 February 2011 Mr Sogutlu wrote to Mr Howson saying that the negotiations were well under way and the deal should conclude within three months. There was no response. The Bank acted shortly afterwards to terminate the arrangements between the parties. 41Whilst commercially a lender may permit the mortgagors to sell the property there is no obligation on it to do so and it may take the sale into its own hands if it feels so inclined. It is, in this case with Botany, the negotiations with the purchaser had been going on for about five months and were not likely to conclude for another three months and that there had also been a failed auction which there were no bidders. There was no obligation on the mortgagee to agree to the mortgagor selling and in the present circumstances it would seem that waiting five months for something concrete to happen was probably enough forbearance for a reasonable mortgagee to take. 42Accordingly, I do not consider that this point should be decided in favour of the mortgagor. 3(f) and 3(q) 43The allegation that the plaintiff sold Alexandria below market value. Mr Sogutlu obtained a valuation from valuers Macquarie Bell dated 31 March 2011 who gave the opinion that the current market value of Alexandria exclusive of GST was $1,060,000. 44The Bank obtained a valuation through its agents from DTZ Valuers and obtained a value from Simon Lo and Cassandra Mortimer which fixed the current market value, subject to existing tenancy at $650,000 plus GST, and the value with vacant possession at $800,000. They reckon that a before sale value as is and subject to existing tenancy was $550,000. 45Mr Lo was cross-examined. The cross-examination did not affect his evidence. In particular he refused to say that asking prices of properties in the area of $1M or so was any real guide to the value. 46The estate agents who marketed the property reported that they had 15 enquiries about the Alexandria property with 7 inspections and 5 people asking for contracts (see Exhibit "PX 1" page 189). 47The agents noted that the previous sales in the area were pre-GST and that some prospects had said that they did not perceive the value of the property as older past sales. Of course I do not take that as evidence of the truth but it is significant that it was said. The agents recommended that Alexandria (which they called St Peters) be auctioned with a reserve of $900,000 as a recommendation that offers over $800,000 on the day might be accepted. 48There was only one bidder at the auction and it was knocked down at $805,000. The mortgagee hired responsible estate agents and took the advice of valuers, had advertised (see later) and it sold in accordance with the recommendation of the agents. I can not see how this material allows me to conclude that the mortgagee sold recklessly. Accordingly the defendants fail on this issue. 3(k) 49I have already detailed the defendants allegations that they had a buyer ready to purchase Botany at $1.5M and that they kept the Bank informed of this but the deal had not come to fruition by February 2011 and Mr Sogutlu thought it would need another three months. 50The estate agents, Cushman & Wakefield, say that there was very limited interest in Botany and despite advertising, only two persons inspected it and there was a failed auction. Mr Lo and Ms Mortimer valued the property in March 2011 for vacant possession and $1.23M was for sale value "as is". The estate agents recommended as a reserve for the auction of $1.4M with the ability to accept offers over $1.3M. As I said, the property was passed in. The highest bidder was $1.5M. 51The sale was negotiated out at $1.2M plus GST after there had been further reference to Mr Lo who advised on 15 August 2011 that after there had been a comprehensive marketing campaign notwithstanding that the offers were below his assessment in his evaluation report, that the offer of $1.2M was to be acceptable and appropriate. It was then accepted. This evidence makes it fairly clear that the mortgagee again did not recklessly sacrifice the mortgagor's interest and took proper expert advice and market exploration in order to achieve the highest price possible. Accordingly the defendants do not succeed on this issue. 52The other headings under 3 are generalisations which are said to flow from the conduct which I have already examined: 3(o) the plaintiff as mortgagee did not act fairly; 3(p) the plaintiff acted in breach of the Real Property Act; 3(s) the plaintiff was guilty of harsh and unconscionable misconduct. 53 I cannot see any particulars as to where there was any breach of the Real Property Act unless this refers to the section 57 matters. In any event these generalised headings take the matter no further than the specific headings I have already discussed. 4 54Group 4 raises various matters of accounting. I can deal with two of these quite quickly: 4(l) charges that the plaintiff charged interest on the loan caused by its own failure to sell the Botany property in good time. The evidence that I have already considered shows that although it did take many months to sell the Botany property this was not due to any default on the part of the Bank but rather the market conditions at the time of the sale. I know the defendants say that they could have sold for $1.5M but it is not unusual for circumstances to arise that a purchaser appears to be willing to pay a large sum of money for property but then he either can't get finance or does his or her figuring a little better and does not proceed. It is notorious that asking prices and even unaccepted offers are no evidence of value. I have traversed the various valuations and marketing experience and this does not lead to the conclusion that the Bank unduly delayed selling Botany. Accordingly this point fails. 4(m) 55The plaintiff paid its solicitors and estate agents excessive legal and agency fees and charged this to the account of the borrower. 56The fees that were paid do indeed appear to be very large. However there is no evidence as to what a proper fee would be nor is there any examination of the work that was actually done by the lawyers and the estate agents and the other agents that the Bank employed in bringing about the realisation of the securities. The defendants say that the court should, in justice, fix these fees and order that the overplus be held to the borrowers and guarantor's account. I have got no jurisdiction to do this and even if I had I would not have had sufficient evidence to be able to make any proper adjustment. Accordingly this claim must fail. 57In addition to the matters pleaded in the defence, there are two other matters which were raised in submissions one of which 4(x) could come within the pleadings and the other could not, but I gave leave for it to be raised. 4(x) 58The loan made in 2007 had a fix interest for 36 months. Under clause 8 of the Terms and Conditions governing the loan where there is a fixed interest for a period, at the end of that period the borrower has various options, either to refix the interest or to go onto a variable rate and otherwise. If no option is exercised then there is a default provision as to how the interest is to be calculated after the fix term expires (see clause 8.5). 59The defendants say that there was an obligation on the Bank to notify them of the options and that until an option was exercised it could not be said that the mortgage was in default because there would be no interest rate agreed on. This must be wrong because of clause 8.5. In any event, the facts show that for some months after the fixed interest period ceased interest was being charged and paid through the nominated account without any protest. There is again nothing in this point. 3(y) 60At the heel of the hunt the defendants said that the Bank had not accounted for the GST of $120,000 which was paid by the buyers of the Botany property. 61As I have said earlier, the GST matter was raised at the heel of the hunt. Mr Charara put forward a number of figures which are created in "MFI 12". On the other hand Mr Villa, between the second and third day of hearing, put forward the "Plaintiff's Supplementary Submission re GST" which refers to various pages of Exhibit "PX1" being the bank account for Sogutlu's nominated account and also for the Bank's agent for sale PPB Advisory. 62Although Mr Charara says that if I were to accept Mr Villa 's supplementary submissions I would be walking "away from a realistic to the impossible". In my view Mr Villa's supplementary submissions and the supporting documents make out his case. I am not completely sure that I have found the flaw in Mr Charara's figures. Mr Charara acknowledges that his figures do not include default interest because on his contention the loan was fully paid and I do not accept him on this. Furthermore, Mr Charara's figures were done on the basis that there was no nominated account which when further material came in he needed to withdraw. Accordingly I accept Mr Villa's submissions on this matter and find there was no problem with accounting of GST. 4(z) 63Mr Charara makes a whole series of complaints on this score, that is, that the Alexandria property was marketed at being at St Peters which he considers to be a more down market suburb and that the advertisements were inadequate by not properly describing the property. It is clear that the property for sale must be adequately and properly advertised. It also appears to be the case on the authorities that it is not improper to advertise the sale of a mortgagee sale (the official advice was offset at 20.30). It may be that the property could have been more extensively advertised but in view of the estate agents marketing strategy it does not seem to me that even if this was so it would have effected the price obtained so that there is no real evidence of any loss. Accordingly I do not consider this factor takes the matter any further. 4(g) 64Paragraph 4(g) alleges the plaintiff failed to account for the difference between the $805,000 received and the $761,000 credited to the borrower's account and 4(h) alleges that the plaintiff failed to give credit for rent received from the tenants of Alexandria. When one looks at the accounts rendered to the Bank by PPB Advisory the rents are there and had been accounted for and I can not see any failure to account in respect of the purchase price. 65Accordingly, I do not consider that any adjustment need be made as a result of Group 4. 5(e) 66Paragraph 5(e) alleges that the plaintiff lured Ercan Sogutlu to sign the guarantee. This allegation is found up with Ercan Sogutlu's evidence that so far as Alexandria was concerned he was only charging his 45 per cent interest in the property as security for the loan on Botany. This evidence is not agreed to by Mr Mifsud and is not corroborated in any bank documents. Mr Ercan Sogutlu was cross-examined by Mr Villa. Mr Villa showed him the mortgage and asked (T81): Q. And when you signed that document you recognised that it was a mortgage didn't you? A. On that document I was under the understanding with Stephen that it was only going to be a caveat not a mortgage. Q. Do you see the word "mortgage" at the top of the page Mr Sogutlu? A. Yes. Q. You knew when you signed this document that you were signing a mortgage didn't you? A. Well not on that basis, as I said before, that was the agreement that we had. Q. Mr Sogutlu, did you recognise this document as the mortgage when you signed this? A. It says "mortgage", yes. Q. Thank you and you knew didn't you that the bank as part of the security for a loan $1.5 million was taking a mortgage over the Botany and St Peters property wasn't it? A. Not mortgage no, as I said, again, it was a caveat that was supposed to be on there not mortgage. He was subsequently taken through the other bank documents. 67In the absence of any other corroborating evidence, the non cross-examination of Mr Mifsud, the rather bizarre understanding of the situation of Mr Sogutlu says he has, in my view I can not accept his evidence as going to anything more than what he might have had in his own mind. The documents just speak for themselves and there are too many of them to make me feel that the transaction was otherwise. Accordingly, this ground gives no relief to the defendants. 6(w) 68The matter of the nominated account was abandoned so I need take this no further. 6(u) and 6(v) 69This is a cause of action in negligence which because of my preliminary remarks must fail likewise the claim for damages consequential in 6(v). 70The defendants say that the Bank was guilty of false and misleading conduct in a number of respects. 6(t) 71Even though the authorities say that the mortgagors only right is an account, it would seem to me that the statutory causes of action under the Trade Practices Act 1974 etc must be allowed to a mortgagor notwithstanding the general rule. 72However, the facts and circumstances relied on by the defendants do not go further than the allegations that I have already considered, in particular the allegation referred to in Group 5. 73Accordingly, this matter must also be found against the defendants. 74It follows that the cross-claim wholly fails, the defence wholly fails and there must be a verdict for the Bank. As at 1 May 2013 I was informed that with interest what was due was $132,858.18. There will be further interest from that day so that I will find a verdict for the plaintiff for that sum plus interest at the rate referred to in the Statement of Claim from 1 May 2013 to today. Order that the cross claim be dismissed. Order that the defendants and cross claimants pay the costs of the plaintiff and order that the exhibits may be returned after 28 days.

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