CBA v Silkman

The case of CBA v Silkman involved the Commonwealth Bank of Australia and Mr Silkman. Mr Silkman had defaulted on a mortgage secured by his home. The bank sought possession of the property and judgment for the sums secured by the mortgage. Mr Silkman raised a defence and cross-claim under the Contracts Review Act, alleging that the loans were obtained for purposes not stated on the application and that he had not been properly informed that the loan was secured on his home. He also claimed that he had made payments to a bank manager to secure the loan. The court needed to determine whether the Contracts Review Act defences were valid and if there was any basis for an equitable claim of unconscionable dealing or wrongful payments.

The court found that the defences under the Contracts Review Act failed because Mr Silkman had understood the basis for his liability under the mortgage and had no concern about its terms. The court noted that the contract was not unjust when the borrower had this understanding. The court also dismissed the claim of unconscionable dealing, stating that there was no special disability in Mr Silkman, and the means by which he obtained money were known to be improper. The court did, however, find that Mr Silkman had made payments to secure the loan, but these payments did not provide a reason to vary the written documents.

The court concluded that the bank was entitled to possession of the property and judgment for the sums secured by the mortgage. The court did not find that the unpleaded claim of wrongful payments provided any grounds to vary the written documents or affect the bank's entitlement to possession and judgment. The final orders of the court were that the bank was to be granted possession of the property and judgment for the sums secured by the mortgage, along with interest and costs.