Unconscionability (Statute)

Sgargetta v NAB [2014] VSCA 159

The lender sued for possession and the parties entered into a deed of settlement. The borrower failed to comply with the deed and provide finance approval acceptable to the lender for a specified sum but nevertheless attempted to pay that sum to the lender at trial. The court held that the borrower’s failure to comply …

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AI Property Investments v National Funding Group [2014] VSC 315

The borrower defaulted and the lender took possession. However, it was then agreed by deed of settlement that the borrower would repay the loan by year end. The borrower did not repay and requested further time, the lender refused and sold the property to a third party. The borrower sought to restrain the sale and …

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Westpac v Robinson [2014] NSWSC 577

The bank claimed possession and the borrower raised a Contracts Review Act defence and claimed damages for unconscionable and misleading conduct by the bank. This case concerned a long term loan and two short term loans to be repaid from an inheritance and tax refund owed to the borrower. At around the time of the …

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Rich v Westpac [2014] NSWCA 136

The husband granted two “all money” mortgages over the family home, which was in his name only, to secure his debts of over $4m to the bank. The husband and wife separated just before the final loan. The wife claimed that her husband was stripping the family assets. The husband became bankrupt and the family …

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Razdan v Westpac [2014] NSWCA 126

This case involved a margin loan. The borrower claimed the bank officer told him that once the gearing on his loan reached 95% the bank would liquidate his holdings. In October 2008 with the stock market in freefall, the bank and the borrower engaged in a series of agonised telephone calls. The upshot being that …

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Gray v Latter [2014] NSWSC 122

A husband and wife purchased a property from friends using vendor finance, which required repayment of all outstanding principal after 2 years and was secured by a mortgage. The court found that the vendors knew that the property was not worth the contract price, even though they may not have known its precise worth and …

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Trust (PTAL) v Albert [2013] NSWSC 1970

The guarantor alleged that the borrower had made an agreement with the bank that the debt would not be called upon until the property had been sold and the shortfall determined. The claim for possession by the lender is therefore unconscionable conduct pursuant to the ASIC Act. In addition, the guarantor claimed an agreement whereby …

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International Skin Care Suppliers v CBA

The bank lent to a group of companies and the directors’ family members (wives, sister and mother) provided guarantees and mortgaged their homes. The guarantors were advised to seek independent legal advice by their lawyer (who also acted for the group) and refused, signing acknowledgements waiving their rights to such advice. The group then went …

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Groves v Groves [2013] QSC 277

This case arose out of margin loans taken out by the owner of ABC Learning Centres, just before its spectacular collapse and his and his wife’s shares sold to satisfy various margin calls. The wife’s shares were sold pursuant to guarantees which secured the husband’s margin loans. The wife’s case was that she did not …

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Westpac Banking Corporation v Billgate [2013] NSWSC 1304

The loan was guaranteed by the developer and his wife. The wife mortgaged the family home as security for her guarantee. The facility went into default. The guarantors acknowledged default in a deed of settlement which released the bank from all claims in return for a reduced amount of the debt owing. The guarantors defaulted …

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