Bassanese v Perpetual Trustees Victoria [2007] NSWSC 1264

In this case the borrower filed a Contracts Review Act claim against Perpetual (the lender) claiming that a clause allowing the lender to recover enforcement expenses was unjust. As a basis for the claim the borrower gave evidence that he was an Italian immigrant and did not understand English very well. The Judge found it disturbing that this evidence was given in English without the assistance of an interpreter. Nevertheless despite the fact that it is standard practice for mortgages to have a clause allowing for the recovery of enforcement expenses and despite the fact that under the common law a mortgagee is entitled to recover enforcement expenses in the absence of such a clause (see Re Shanahan (1941) 58 WN (NSW) 132) the Judge decided there was a serious question to be tried as to whether the clause was unjust within the meaning of the Contracts Review Act. Accordingly he ordered that from the sale proceeds a sum equal to the enforcement costs be paid into court (rather than to the lender) pending a final determination of the claim. With due respect to His Honour this is an absurd decision and yet another example of why NSW is becoming increasingly unattractive for lenders due to the delays and unnecessary legal expenses incurred over Contracts Review Act claims which ultimately never succeed but which often result in shortfalls because of the added legal costs. It is submitted that the Court needs to be more realistic when asked to determine whether a borrower has an arguable Contracts Review Act defence. The false compassion shown by allowing borrowers their day in Court (when the outcome is certain) only leads to more debt and often bankruptcy for the borrower not to mention undermining the property rights (and therefore confidence in the legal system) of the lender.

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