District Court
New South Wales
- Amendment notes
Medium Neutral Citation: Ana Lulic v Denise Lulic [2016] NSWDC 6 Hearing dates: 9 – 11 December 2015 Decision date: 12 February 2016 Jurisdiction: Civil Before: Mahony SC DCJ Decision: Verdict and judgment for the plaintiff. For orders see [188]
Catchwords: Unjust contract; principles for application of Contracts Review Act 1980; discretion to refuse to enforce unjust contract not exercised Legislation Cited: Contracts Review Act 1980 (NSW)
Evidence Act 1995 (NSW)
Succession Act 2006 (NSW)
Trade Practices Act 1974 (Cth)Cases Cited: A v N [2012] NSWSC 354
Esanda Finance Corporation Ltd v Tong; Leo Muggleton v Esanda Finance Corporation Ltd (1997) 41 NSWLR 482
Jones v Dunkel (1959) 101 CLR 298
Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41
Provident Capital Ltd v Papa [2013] NSWCA 36
Riz v Perpetual Trustee Australia Ltd [2007] NSWSC 1153
Spina v Permanent Custodians Ltd [2009] NSWCA 206
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] 219 CLR 165
Watson v Foxman (1995) 49 NSWLR 315
West v AGC (Advances) Ltd (1986) 5 NSWLR 610
Wilton v Farnworth (1948) 76 CLR 646Category: Principal judgment Parties: Ana Lulic (Plaintiff)
Denise Lulic (Defendant)Representation: Counsel:
Solicitors:
D L Cook (Plaintiff)
M Hay (Defendant)
Polczynski Lawyers
Southern Waters Legal
File Number(s): 15/81832 Publication restriction: Nil
Judgment
-
By Statement of Claim filed on 18 March 2015, the plaintiff claims monies owed by the defendant pursuant to a deed dated 3 June 2013, in an agreed sum of $325,000.00.
-
By an Amended Defence the defendant seeks an order pursuant to s 7 of the Contracts Review Act 1980 (NSW) (“CRA”) that the deed was unjust in the circumstances relating to it at the time it was made. The defendant has pleaded that the court should exercise its discretion and refuse to enforce any or all of the provisions of the deed. Thus, the parties agreed that the issues to be determined by the court are as follows:
“Whether the deed, signed on 03 June 13, or any provision of the deed was unjust in the circumstances relating to the contract at the time it was made.
Whether the court should exercise its discretion and refuse to enforce any or all of the provisions of the contract.
Whether the contract should be declared void in whole or in part.
Whether the court should make an order varying, in whole or in part, any provision of the contract; and
Whether the plaintiff had any moral or legal claim against the estate of the late Roni Lulic.”
-
By [13] of her Amended Defence, the defendant alleges that the plaintiff is in breach of the terms of the deed in that, contrary to cl 3 thereof, the plaintiff made claims against a superannuation policy held by the deceased on 26 November 2014 and that this breach represents a fundamental breach of the deed. That pleading was not pursued by Counsel for the defendant at the hearing and no submissions were…
Keep reading for free
Create a free CaseChat account to read Ana Lulic v Denise Lulic and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2016] NSWDC 6
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the contract was indeed unjust under the provisions of the Contracts Review Act 1980 and if so, whether the court should exercise its discretion to refuse to enforce the contract. The court had to consider the principles set out in the Act, including whether there was a substantial inequality in the parties' bargaining power and whether any unfairness was significant enough to render the contract unjust.
The court found that there was indeed a substantial inequality in the parties' bargaining power due to Ana's vulnerability and Denise's superior position. However, the court determined that the degree of unfairness did not reach the threshold required to exercise its discretion to refuse to enforce the contract. The court held that while the contract was unjust, the circumstances did not warrant the extreme remedy of refusing to enforce it. The court's reasoning was based on the need to balance the protection of vulnerable parties against the potential disruption to legitimate commercial transactions.
The final orders of the court were in favour of Ana, declaring the contract unjust but not exercising the discretion to refuse to enforce it. The specific orders are detailed in paragraph 188 of the judgment.
Orders
Orders of the court
Verdict and judgment for the plaintiff. For orders see [188]
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.