Bonanno v Finamore

In the matter of Bonanno v Finamore, the plaintiff sought to enforce the terms of a deed against the defendants. The defendants argued that the deed should not be enforced as it had been procured by the plaintiff taking unconscientious advantage of the defendants' special disadvantages. The defendants also claimed that the deed had been effectively terminated by them in response to the plaintiff's breach or repudiation. The court was required to determine whether the deed was enforceable and whether the transfer provisions contained within it were a clog on the equity of redemption.

The court found that the transaction documented in the deed was in substance a mortgage, despite the plaintiff's argument that it was a loan document with an added facility. The court held that the obligation to transfer the one third interest in property was a collateral advantage. The court also found that the defendants did suffer from some special disadvantages and that the plaintiff was not in a powerful bargaining position when the deed was entered into. However, the court held that the conduct of the plaintiff in entering into the deed was not sufficiently unconscientious to justify the court setting the deed aside. The court further found that the transfer provisions were a clog on the equity of redemption and were therefore void.

The court held that the deed had not been effectively terminated by the defendants and that it was enforceable. The transfer provisions were void, but this did not affect the enforceability of the other terms of the deed. The court made orders in favour of the plaintiff, enforcing the terms of the deed and declaring that the transfer provisions were void.