Avery v Saree Holdings Ltd [2013] NSWSC 1032

There had been an order for a taking of account between a lender and borrower as part of more complex proceedings. An issue arose in that taking of account as to whether there had been an overpayment to the borrower under the mortgage of monies not intended to be paid to her.

There were competing contentions about the monies. The lender alleged that it had mistakenly applied money held on trust to the purchase of the borrower’s apartment. It was agreed that if that were established it would generate a personal restitutionary liability on the part of the borrower to repay that amount. The borrower disputed there had been any overpayment.

Ultimately, the Judge decided between the contentions based on the evidence of witnesses and documents. His Honour found that the objective evidence favoured the borrower’s version and he concluded that there had not been an overpayment in the way the lender alleged.

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