Vella v Mitchell Morgan Nominees Pty Ltd

HIS HONOUR : These proceedings were heard together with No 4122/06 and four other matters.

The plaintiff, Alessio Vella, seeks a declaration that no monies are owing by him secured by a mortgage registered AC56277M affecting the land comprised in Folio Identifier F/443979 being land at Enmore.

The hearing took place together with 4122/06. Mr M J Slattery QC, Mr D A Smallbone and Ms L Wilson appeared for the plaintiff. Mr B A Coles QC and Mr G A Sirtes appeared for Mitchell Morgan. Mr J W Stevenson SC and Mr N Kabilafkas appeared for Hunt & Hunt. Mr R G Forster SC and Mr P J Dowdy appeared for the ANZ Bank, and Mr P Morris for Mr Rutty.

Mitchell Morgan issued a cross-claim against the plaintiff alleging that the plaintiff had received into a bank account of which he was a co-owner $1.13 million which he should refund. Mitchell Morgan also filed a second cross-claim against the solicitors who acted for it, Hunt & Hunt, alleging negligent performance of the work that they were to do under the retainer from Mitchell Morgan. Hunt & Hunt’s defence was not only a denial, but also a reliance on s 34 of the Civil Liability Act 2002 – apportionment with alleged concurrent wrongdoers, Lorenzo Flammia, Tony Caradonna and James Marc Rutty.

There is a third cross-claim by Mitchell Morgan against the ANZ Bank for $1,001,748.85 because it says the ANZ Bank received the payment of that sum from the relevant transaction by mistake.

The fourth cross-claim has been abandoned.

The fifth cross-claim by Hunt & Hunt is against Lorenzo Flammia, solicitor, Tony Caradonna and James Rutty. Mr Flammia is now a bankrupt and the cross-claim has been discontinued against the other cross-defendants. However, an order was made under s 58 of the Bankruptcy Act 1966 authorising the continuance of the proceedings against Mr Flammia up until judgment.

For the reasons given in 4122/06, the plaintiff is entitled to the declaration that he seeks and to be restored to his land free of the mortgage. The cross-claim against Mr Vella is dismissed, a matter considered in the main judgment. The third cross-claim by Mitchell Morgan against the ANZ Bank is dismissed.

For the reasons given in 4122/06, Mitchell Morgan’s cross-claim against Hunt & Hunt succeeds as to 12.5% of its loss.

The fifth cross-claim by Hunt & Hunt against Mr Flammia succeeds for the reasons given in 4122/06 and Mr Flammia should indemnify Hunt & Hunt against their liability to Mitchell Morgan.