Supreme Court blow for Gairdner farmer

Cate RocchiCountryman
Supreme Court blow for Gairdner farmer
Camera IconSupreme Court blow for Gairdner farmer Credit: Countryman

Gairdner farmer Frank Bertola's fight against the ANZ Bank taking possession of his South West properties has taken a setback.

The bank is trying to recover an alleged debt owed by Mr Bertola, personally and through his company Olawa Pty Ltd, of $3.8 million.

Mr Bertola's counsel had previously argued the ANZ "acted unconscionably" with regards to his loan arrangements, truncating his loan expiry date from February 28, 2031 to March 31, 2010.

The case is complicated by the involvement in Mr Bertola's account by ANZ's trustees, Permanent Custodians Ltd - a subsidiary of BNY Mellon Australia Ltd.

In his report in the Supreme Court, pre-trial master Craig Sanderson said no aspect of the unconscionability argument had merit.

"In May 2009 the defendants signed a letter of variation which effected an amendment to the Permanent Custodians' loan facility," Mr Sanderson reported.

"Correspondence from Permanent Custodians at the time indicated they had serious concerns about the status of the facility.

"It is clear then the variation letter was not a standard extension but was driven by real concerns on the part of Permanent Custodians as to the ability of the defendants to repay the facility. In fact, looking at the plaintiff's conduct as a whole, they seem to have gone to considerable lengths to provide the defendants with every opportunity to market both Coonawarra and San Pedro (Mr Bertola's farms) on their own terms to allow eventual repayment of the debt."

Mr Bertola said he planned to appeal the decision.

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