Commonwealth Development Bank of Aust Ltd v Child

The Commonwealth Development Bank of Australia Limited sought to enforce a mortgage against Child. The dispute involved the enforceability of a mortgage agreement between the bank and Child, with the latter arguing that the agreement was unconscionable or alternatively, that she was not the party who signed the document. The case was heard by the Supreme Court of South Australia. The primary legal issues for the court to decide were whether the mortgage was unconscionable under the Contracts Review Act 1980, and if Child could rely on the defence of non est factum under the Trade Practices Act. The court found that the mortgage was indeed unconscionable, as it was a result of a significant inequality in bargaining power between the parties. However, the court also found that Child had signed the document and therefore could not successfully plead non est factum. Relief was granted to the bank in part, subject to the condition that the mortgage would be subject to a reduction in interest rates. The court ordered that the mortgage agreement be varied to reflect the reduced interest rates, and that Child pay the bank the outstanding balance on the mortgage.