Unconscionability (Statute)

Azar v Citigroup [2011] NSWCA 380

This case concerns an appeal from a judgment of the Supreme Court (see Citigroup v Azar [2011] NSWSC 95) which granted the lender judgment for possession. The facts were that parents borrowed funds to refinance their existing mortgage and to give money to their son. The parents claimed that they were elderly, on a pension …

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Bendigo and Adelaide Bank v Cairncross [2011] NSWSC 610

A group of 300 people who borrowed monies from the bank for the purpose of investing in a failed managed investment scheme (Great Southern Managers Australia Limited) sought to avoid repaying their loans based on breach of Fiduciary Duty and Contracts Review Act. The bank sought summary judgment against these claims. The Judge found the …

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BankWest v Tannous [2010] NSWSC 1319

The borrowers alleged their son forged the mortgage. Normally under these circumstances the borrowers would still have to give the lender credit for any amount paid by the lender to discharge a previous mortgage. However in this case the borrowers alleged the previous mortgage was also forged by their son. To make out their claim …

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Smit v Carney [2010] NSWSC 910

Mrs Smit was born in 1935. Her son began living with her after his marriage failed. In February 2009, her son claimed he wished to finance a rock concert but she refused to mortgage her property for the purpose of raising those funds. The son resolved to forge a mortgage. The mortgage he entered had …

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BankWest v Luo [2010] NSWSC 733

This was a claim by the lender for possession of the borrowers’ (a husband and wife) property that was secured by a mortgage, following their default in making repayments. The borrowers relied mainly on the defences of non est factum, undue influence, unconscionability (s 51AA of the Trade Practices Act 1974), and misleading and deceptive …

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Verduci v Golotta [2010] NSWSC 506

The borrowers sought to set aside a mortgage taken over the family home in 1988. The lender sought to enforce the mortgage. The interest rate on the mortgage was 20% per annum. This was not unusual, at the time of the loan the interest-rate on Court judgments was 18% per annum. The mortgage contained a …

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Perpetual Trustees Vic v Bodiroza [2010] NSWSC 238

In this matter a Serbian immigrant, who was illiterate in English, who was on Centrelink benefits and had no job, obtained a compensation payout of $40,000 and decided to buy a unit. Some intermediary forged various documents and the loan was represented as being to a woman with a car and a dress making income. …

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Fitzsimons v CBA [2009] NSWSC 1255

Proceedings for possession were resolved by the parties entering into a deed of release with provision for the lender to take possession of the security and sell it. The borrower then had a change of heart and sought an injunction preventing the sale and to raise new defences based on the Contracts Review Act. The …

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Spina v Permanent Custodians [2009] NSWCA 206

In this case an 86 year old Mother sought relief under the Contracts Review Act and the doctrine of Unconscionability in relation to a mortgage entered into at the behest of her son and substantially for his benefit. The Mother was in a nursing home at the time of the loan but nevertheless the Khoshaba …

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Perpetual Trustees Victoria v Longobardi [2009] NSWSC 654

A husband and wife entered into a mortgage with Perpetual to prop up their failing florist shop. The husband was subsequently hospitalised and given electroconvulsive therapy for depression and hypermania. The couple then defaulted and Perpetual sought possession. The couple’s defence was that the mortgage was “unjust” for the purposes of the Contracts Review Act …

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