Perpetual Trustee Company v Kotevski [2009] NSWSC 954

In this case the borrower, Alexander Kotevski, an unemployed pensioner aged 78 claimed, that Perpetual Trustee’s agent, Good Home Loans Pty Ltd, completed and submitted the loan application to Perpetual, without his authority and without making enquiries as to his ability to repay the loan in accordance with its terms. He also claimed the loan application was bereft of information ordinarily required to assess eligibility for a home loan. Mr Kotevski also claimed that the credit contract was unjust under the Contracts Review Act and should be declared void. Perpetual cross-claimed against Milanex Homeloans, who introduced the borrower. The borrower also cross-claimed against his solicitor, Milanex and its sole director Mr Vlasic.

Two days before the trial began (which was set down for 7 days) Milanex and Mr Vlasic, sought leave to amend to allege Proportionate Liability. Perpetual resisted the amendment on the grounds that the specific cause of action against the alleged concurrent wrongdoers had not been pleaded in the amended defence. The judge considered the case law and decided that this was not necessary. This was the same conclusion Matthew Bransgrove expressed in his October 2008 College of Law paper Proportionate Liability in Claims against Valuers.

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