ANZ v Londish [2012] NSWSC 809

The bank loaned for the benefit of the husband’s companies secured by a second mortgage granted by the wife.

The wife’s original defence was that the loan agreement had been varied to capitalise the unpaid interest so there was no default.

The wife then sought to amend the defence to raise a Contracts Review Act defence, an Amadio defence and unconscionability.

In order to raise the Amadio defence, the wife had to withdraw admissions in the original defence. She required the leave of the court to do so.

The judge granted leave for the amended defence to be filed (and the admissions withdrawn) with the following comment:

The original defence was prepared without the benefit of proper legal advice. While the defendant’s husband may have a law degree, he does not practice as a lawyer and his interest differs from that of his wife. While the she now has to prepare a more extensive case, the amendments were made at a fairly early stage in the proceedings and they raised the real issues in dispute. Hence, in the interests of justice, it is my view that the wife should be permitted to withdraw the admissions she made in the original defence.

Click here to read full judgment. 

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