Perpetual Trustee Company v Azzi [2008] NSWSC 1008

The borrower immigrated from Lebanon in 1984. Her husband transferred the house into her name and she asserts he had her sign mortgage documents which she did not understand, did not read, and knew nothing about. The lender asserted her Contracts Review Act defence was hopeless and sought summary judgment. However Associate Justice Harrison held:

It is generally inappropriate to determine a defence which raises the Contracts Review Act on an application for summary judgment. It is my view that the defendant’s defence is not hopeless. It should be permitted to go to trial.

Bransgroves advise all lenders not to even bother attempting summary judgement – no matter how futile the defence raised by the borrower. It generally results in a more drawn out process than going to full blown trial would. This is because all the same steps are required to prepare for it and even if you have an airtight case the Court will usually adjourn the motion to allow the borrower to replead or decline to hear it (and refer it for full hearing). Where the defence raised relates to the Contracts Review Act you have no chance (based on the case law – one wonders why it was attempted here). Painful as it might be, ridiculous and frustrating as the Contracts Review Act and NSW Supreme court process is, you simply have no choice under the current regime.

Click here to read the full judgment

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