CBA v Tarrant & Hawkins [2012] NSWSC 165

The borrower wanted to raise a Contracts Review Act defence. The problem was that she had already failed in a bid to raise a Contracts Review Act defence to the predecessor mortgage (in an earlier decided case). The judge commented:

Such a circumstance raises very significant problem for Ms Tarrant in the present case in any reliance she has on a defence under the Contracts Review Act 1980 because of the principle derived from Collier v Moreland Finance Corporation (1989) 6 BPR 13, 337. In the circumstances where Ms Tarrant can no longer assert that the prior loan from Statewide was unjust it is difficult to see why the Collier principle would not apply which would result in Ms Tarrant having to give credit for the entire amount of the loan that was paid to Statewide. The result would be that her Contracts Review Act defence in the present case would fail.

Section 56 Civil Procedure Act 2005 mandates a just, quick and cheap resolution of the real issues between the parties. Notwithstanding the judge refused to hear a Summary Judgment application–as despite his above observation he felt summary judgment could not be given on a Contracts Review Act defence.

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