NAB v Zeene [2015] NSWSC 608

In this case an 81 year old woman gave a mortgage over her home. The bank also took a mortgage over two units being developed by her daughter and her husband.

This was her lawyers second attempt to file a defence. The substance of her defence is that she is a retired pensioner of limited means, who was deaf. She was totally dependent upon her daughter, “for all her interactions with the outside world”, and was in a relationship of trust and confidence with her.

The mortgaged property was her home and primary asset. The loan agreements “represented an inherently improvident bargain” for her. She had no interest in the purpose of the loan, which was the “joint venture” of her daughter and son-in-law, and she received no benefit from the agreements. She did not seek or obtain independent financial and or legal advice before entering into them.

All this, it is claimed, the Bank knew or ought reasonably to have known. In particular, it is asserted that the Bank showed no interest in her daughter’s ability to service the loan, and was aware of the relationship of trust and confidence between her and her daughter and her vulnerability to “duress” by her daughter.

The judge agreed that once again her legal advisors had done a poor job at pleading. Nevertheless, in view of the substance of her defence he granted another opportunity to replead.

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