Driat Pty Ltd v Thomas - [2012] NSWSC 683

Supreme Court

New South Wales

Medium Neutral Citation: Driat Pty Ltd v Thomas [2012] NSWSC 683
Hearing dates: 18, 19 June 2012
Decision date: 22 June 2012
Jurisdiction: Common Law
Before: Windeyer AJ
Decision:
Orders:
(1) Judgment for the plaintiff against the first defendant for $1,716,024.00.
(2) Order that the cross claim be dismissed.
(3) Order that the first defendant give possession of property 140 Blencowes Lane, Wildes Meadow being the land in Certificate of Title Folio Identifier 21/622165 to the plaintiff.
(4) Stand over the claim for possession of property 3/12 Longworth Avenue, Point Piper Folio Identifier 3/SP17043 for 2 months with leave to restore on 7 days' notice, which notice shall also be given to any first mortgagee.
(5) Order the first defendant to pay the plaintiff's costs of the claim and cross claim.

Catchwords:
MORTGAGE- Real Property- mortgages- claim by mortgagee for possession on default- cross claim under Contracts Review Act- claim by second mortgagee for possession when order for possession already made in favour of first mortgagee- whether orders should be made.

CONTRACT- loan agreements secured by mortgage- lender told purpose of loan- no evidence this was untrue or unintended - borrower understood the nature of documents signed and lender's solicitor relied on documents forwarded to him signed by borrower as to loan purposes, and independent advice- no disability- whether contracts unjust.
EQUITY- unconscionable conduct- no evidence of special disability.
Legislation Cited: Contracts Review Act 1980
Cases Cited: Accom Finance Pty Ltd v Mars Pty Ltd [2007] NSWSC 726
Berkshire Capital Funding Limited v Street (1999) 78 P & CR 321
Perpetual Trustee Company Limited v Khoshaba [2006] NSWCA 41
Universal Showcards & Display Manufacturing Limited v Brunt & Ors (1984) 128 Sol Jo 581
Yerkey v Jones (1938-9) 63 CLR 649
Zanzoul v Westpac Banking Corporation (1995) 6 BPR 14,142
Category: Principal judgment
Parties: Driat Pty Limited (Plaintiff)
Carey Yulan Adria Thomas (First Defendant/Cross Claimant)
Anthony Malbon Allison (Second Defendant)
Representation:
Counsel:

D C Price (Plaintiff)
P Folino -Gallo (First Defendant/Cross Claimant)
Solicitors:
Kemp Strang (Plaintiff)
Levitt Robinson Solicitors (First Defendant/Cross Claimant)

File Number(s): 2011/271645

Judgment

HIS HONOUR:

Outline

The plaintiff, Driat Pty Ltd, advanced money to the defendants Carey Thomas and Anthony Allison under two loan agreements and on mortgages from the first defendant to secure the advances. Both loans are in default. Judgment has been entered against the second defendant. Default judgment against the first defendant was set aside, the first defendant being given leave to file a defence and cross claim raising issues under the Contracts Review Act 1980 and a claim under the general law for unconscionable conduct.

The proceedings thus continue against the first defendant and on the cross claim. It is conceded that unless orders are made in favour of the first defendant on the cross claim, the plaintiff will be entitled to succeed on the statement of claim and obtain orders for possession of the mortgage properties in money judgments. There is one rider to this and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NSWSC 683
Decision Date: 22 June 2012

CaseChat Overview and Summary

Driat Pty Ltd sought an order for possession of property after the borrower defaulted on the mortgage repayments. Thomas, the borrower, raised a cross-claim under the Contracts Review Act, arguing that the loan agreements were unjust due to a misrepresentation about the purpose of the loan. Thomas also sought an order for possession against Driat, as the first mortgagee, after an order for possession had already been made in favour of Driat. The court was required to determine whether the loan agreements were unjust and whether orders should be made in favour of Thomas.

The court found that the borrower had understood the nature of the documents signed and that there was no evidence of misrepresentation or untruthfulness about the purpose of the loan. The lender had relied on the documents signed by the borrower, and there was no evidence of special disability or unconscionability. The court held that the contracts were not unjust and dismissed Thomas's cross-claim. The court also found that, as an order for possession had already been made in favour of Driat, there was no need to make further orders in favour of Thomas.

The court dismissed Thomas's cross-claim and held that the loan agreements were not unjust. The court found that there was no evidence of misrepresentation or unconscionability and that the borrower had understood the nature of the documents signed. The court held that, as an order for possession had already been made in favour of Driat, there was no need to make further orders in favour of Thomas. The final orders of the court were that Thomas's cross-claim be dismissed and that no further orders be made in favour of Thomas.

Orders