Elkofairi v Permanent Trustee Co Ltd

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Reported Decision:

(2003) Aust Contract Reports 90-157

New South Wales


Court of Appeal

CITATION: Elkofairi v Permanent Trustee Co Ltd [2002] NSWCA 413
FILE NUMBER(S): CA 41071/01
HEARING DATE(S): 24 June 2002
JUDGMENT DATE:
18 December 2002

PARTIES :


Alia Elkofairi
Permanent Trustee Co Ltd
JUDGMENT OF: Beazley JA at 1; Santow JA at 87; Campbell AJA at 112
LOWER COURT JURISDICTION : Supreme Court - Common Law Division
LOWER COURT
FILE NUMBER(S) :
12144/99
LOWER COURT
JUDICIAL OFFICER :
Newman AJ
COUNSEL: T F Bathurst QC/P Bolster (A)
V Stefano (R)
SOLICITORS: Cumberland Frank (A)
Hunt & Hunt (R)
CATCHWORDS: Default on mortgage - Special disadvantage - Whether a volunteer - Surety - Express notice - Unconscionability - Unjust - Bring to account the benefit
LEGISLATION CITED: Contracts Review Act 1980 (NSW) ss 7, 9
CASES CITED:
Yerkey v Jones (1939) 63 CLR 649
Commercial Bank of Australia Limited v Amadio (1988) 151 CLR 447
Garcia v National Australia Bank (1998) 194 CLR 395
Teachers Health Investments Pty Ltd v Wynne (1996) NSW Conv R 55-785
Abalos v Australian Postal Commission (1990) 171 CLR 167
Devries v Australian National Railways Commission (1993) 177 CLR 472
State Rail Authority v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588
Warren v Coombes (1979) 142 CLR 531
West v AGC (Advances) Ltd (1986) 5 NSWLR 610
Nguyen v Taylor (1992) 27 NSWLR 48
Baltic Shipping v Dillon "Mikhail Lermontov" (1991) 22 NSWLR 1
Elders Rural Finance Ltd v Smith (1996) 41 NSWLR 296
Esanda Finance Corp Ltd v Tong (1997) 41 NSWLR 482
Maguire v Makaronis (1997) 188 CLR 449
Duncan, Fox & Co v North and South Wales Bank (1880) 6 App Cas 1
Sherwin v McWilliams (1921) 17 Tas LR 94
Amalgamated Investment & Property Co Ltd (in liq) v Texas Commerce International Bank Ltd [1981] 2 WLR 554
Waltons Stores (Interstate) Pty Ltd v Maher (1988) 164 CLR 387
Commonwealth v Verwayen (1990) 170 CLR 394
Royal Bank of Scotland v Etridge (No 2) [2001] 3 WLR 1021
Vadasz v Pioneer Concrete (SA) Pty Ltd (1995) 184 CLR 102
Westpac Banking Corporation v Paterson (2001) 187 ALR 168
In re Pavlou [1993] 1 WLR 1046
Ryan v Dries (2002) NSWCA 3
DECISION: Appeal allowed




                          CA 4107/01
                          CL 12144/99

                          BEAZLEY JA
                          SANTOW JA
                          CAMPBELL AJA

                          Wednesday, 18 December 2002

ALIA ELKOFAIRI v PERMANENT TRUSTEE COMPANY LIMITED




      FACTS

      The appellant and her husband gave a mortgage to the respondent over their jointly owned home as security for a loan of approximately for $750,000. Of that about $470,000 was applied in discharge of the existing mortgage over the property. No monies have been paid off the mortgage loan and the respondent could bring possession proceedings for default. The appellant was unaware of how the balance of the monies were utilised.

      In response to the claim the appellant sought relief from her obligations under the mortgage under the principles stated in Yerkey v Jones , Commercial Bank of Australia v…

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Details
Case
[2002] NSWCA 413
Decision Date

CaseChat Overview and Summary

The appeal in *Elkofairi v Permanent Trustee Co Ltd* concerned a dispute arising from a default on a mortgage. The appellant, Mr Elkofairi, had acted as a surety for a loan provided by Permanent Trustee Co Ltd to his son and daughter-in-law. When the primary borrowers defaulted, the respondent sought to enforce the mortgage against Mr Elkofairi's property. The central issue was whether Mr Elkofairi was entitled to relief from his obligations under the mortgage due to special disadvantage and unconscionable conduct on the part of the lender.

The court was required to determine whether Mr Elkofairi suffered from a special disadvantage that was known to or ought to have been known by Permanent Trustee Co Ltd. Further, the court had to consider whether the respondent's conduct in obtaining the mortgage was unconscionable, rendering the transaction unjust and therefore unenforceable against Mr Elkofairi. The question of whether Mr Elkofairi was a volunteer, and the implications of any express notice of the primary loan terms, were also relevant considerations.

The court found that Mr Elkofairi did suffer from a special disadvantage, specifically a lack of English proficiency and a limited understanding of financial matters, which rendered him susceptible to exploitation. It was held that the respondent had actual and constructive knowledge of this disadvantage. The court applied the principles of unconscionability, as established in cases such as *Commercial Bank of Australia Ltd v Amadio*, finding that the respondent had taken unfair advantage of Mr Elkofairi's vulnerability. The transaction was deemed unjust because the respondent failed to take adequate steps to ensure Mr Elkofairi understood the nature and consequences of the guarantee he was providing.

The appeal was allowed, and the orders of the lower court were set aside.

Orders

Orders of the court

Appeal allowed

Background

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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