Zamobay v BankWest [2009] NSWSC 410

In this case the lender exercised power of sale over three properties suffering a shortfall. The guarantor alleged following offsetting claims:

  1. Alleged failure to achieve a proper rent for the securities prior to the sale;
  2. Alleged improper exercise of the power of sale in respect of one of the securities;
  3. Failure to account for approximately $20,000 of the sale proceeds of one of the securities.

Claim 1 failed for lack of evidence. Claim 2 was particularised as follows:

As a direct result of the conduct and omissions the Burwood commercial premises were sold, using comparable and proportionate calculations for space ratios and height limits, at about $4,000,000 less than is true worth.

This was considered by the Court to be insufficient particularisation and as it was coupled with a complete absent of expert evidence, this claim too was rejected. Claim 3 was rejected as it was revealed to be a misconception arising from the GST calculations.

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