Holstein v RTS Super [2012] NSWSC 346

The lender advanced various amounts of money to the borrower. However two of the advances alleged to have been loaned were disputed. The borrower brought the error to the solicitor’s attention and believed it would be fixed. However in the meantime, he signed a variation of the mortgage which still included the disputed loan amounts.

The dispute ultimately went to court. The court preferred the evidence of the borrower, as it was supported by bank statements showing that certain cheques were deposited but not the disputed amounts.

The lender’s explanation was that the disputed amounts may have been made via cheques payable to third parties. The court did not accept this, as it was conjecture.

The court found that the lender based his evidence on entries on the loan card and the lender accepted that he could have made an error in not correcting the loan card amount after the error had been brought to his attention by the debtor.

The court accepted the borrower’s evidence that he believed the lender would correct the amount despite the fact that the debtor signed the variation of mortgage still showing the incorrect loan amount and had CBA refinance the loan including the disputed amount.

The court found that even though the payout figure requested by the lender was paid, the borrower was not precluded from bringing an action for damages, restitution or equitable compensation. The court awarded the debtor damages in the amount of the overpayment plus the interest referable to this portion of the monies lent by CBA.

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