Unconscionability (Statute)

Mete v Fiasco [2013] VSC 460

A transferor sought to have the sale of his property and the mortgage taken out by the transferee set aside on the basis of misleading and deceptive and unconscionable conduct on the part of the transferee and unconscionable conduct (at general law and under statute) on the part of the mortgagee. The transferor alleged that …

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Permanent Mortgages v Spartacus Enterprises [2013] NSWSC 911

The borrower (which was a company) argued that the loan agreement was unconscionable under the ASIC Act, and unjust under the Contracts Review Act. The principal of the borrower gave evidence that the statement of assets contained false information about his financial circumstances, that it had been prepared by the mortgage broker and he had …

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ANZ v Amico [2013] NSWSC 716

The borrower claimed that the loan was unconscionable because misrepresentations were made in relation to the loan amount. The borrower was arguing that the bank had lent about $500,000 less than it agreed to lend, which meant the borrower could not renovate and lease the property and increase its capital value. The borrower also wanted …

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Violet Homes Loans v Schmidt [2013] VSCA

An elderly pensioner was conned by a dishonest financial adviser into borrowing to invest in his fraudulent scheme. The mortgage originator/manager was not aware of the dishonesty of the sub-introducer and approved the loan without interviewing the borrower in accordance with its guidelines or making enquiries following the discrepancies between the income of the borrower …

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CBA v Thompson [2013] NSWSC 149

The bank took possession of a failed residential development. The bank then proceeded against one of the guarantors. The guarantor claimed that the bank had to first sell the units before enforcing the guarantee and that the bank had engaged in unconscionable conduct in taking preliminary steps to market and then doing nothing for over …

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Juric-Kacunic v Vaupotic [2013] NSWSC 41

A husband and wife advanced their friend’s son $300K for his panel beating business. The monies were in fact used in a get rich quick scam. When the lenders sued for the debt, the son raised multiple defences including that it was not his deed because of a lack of literacy and/or his education and …

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NAB v Strategic Brands Australia [2012] NSWSC 682

A company loan was secured by mortgages and guarantees given by the company’s directors. The company directors filed a defence in which they claimed that the bank had represented that it would make a further advance and that this constituted: misleading and deceptive conduct under 12DA of the ASIC act; and unconscionable conduct under 12CB …

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Bank of Western Australia v Ellis J Enterprises [2012] NSWSC 313

A husband’s company borrowed $11.675m to fund a property development. The wife granted a mortgage over her house and guaranteed the facility. Other guarantees and charges were provided by other members of the family. The loan went into default and the bank sought possession of the wife’s house. The wife sought to have the loan …

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Prime Capital Securities v Laperecon [2012] NSWSC 386

The lender advertised the security property for sale before the s57(2)(b) notice expired. Thus it advertised the property prior to having a power of sale. However the judge noted this was acceptable: A lender is entitled to take steps towards sale of a property before the time when a power of sale has accrued: Farrar …

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Tonto Home Loans Australia v Tavares [2011] NSWCA 389

This Court of Appeal decision concerned three cases where the lender, ANZ subsidiary, Origin Mortgage Management Services, used a mortgage originator, Tonto Home Loans, who in turn used a broker, Streetwise. Streetwise conned the borrowers into taking out the loans and it’s principal, Mr Bangaru, absconded with the proceeds. The trial judge set aside the …

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