HomeSec Finance Express Pty Ltd v Richardson - [2012] NSWSC 1375

Supreme Court

New South Wales

Medium Neutral Citation: HomeSec Finance Express Pty Ltd v Richardson [2012] NSWSC 1375
Hearing dates: 25 - 28 June 2012
Decision date: 14 November 2012
Jurisdiction: Common Law
Before: Button J
Decision:
(1) Judgment for the plaintiffs.
(2) Stand proceedings over for further directions to 9:15am on 28 November 2012.
(3) Counsel for the plaintiffs to file and serve short minutes of order on or before 4pm 23 November 2012, setting out the orders he seeks in light of the judgment, including as to costs.
(4) Liberty to the parties to re-list the matter before Button J before then, on 2 days' notice.

Catchwords: CONTRACTS - loan agreements and registered mortgages - proceedings by lender against borrower for possession and monetary order - Contracts Review Act 1980 - loan for a business purpose - not asset lending - whether conduct of "mortgage broker" amounted to agency - consideration of s 9 factual matters - not unjust - lender conduct not "unconscionable" - Trade Practices Act and Fair Trading Act not applicable
Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth)
Competition and Consumer Act 2010 (Cth)
Contracts Review Act 1980
Evidence Act 1995
Fair Trading Act 1987
Industrial Relations Act 1996
Trade Practices Act 1974 (Cth)
Cases Cited: Brighton v Australia and New Zealand Banking Group Ltd [2011] NSWCA 152
Chen v Song [2005] NSWSC 19
Collins v Parker (Supreme Court of NSW, Lee J, 11 May 1984, unreported)
Ellison v Vukicevic (1986) 7 NSWLR 104
Fish v Solution 6 Holdings Limited [2006] HCA 22; (2006) 225 CLR 180
Ford by his Tutor Beatrice Ann Watkinson v Perpetual Trustees Victoria Limited [2009] NSWCA 186
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313
Kowalczuk v Accom Finance [2008] NSWCA 343
Permanent Custodians Ltd v Nobilo [2012] NSWSC 109
Permanent Mortgages Pty Ltd v MacFadyen [2012] NSWSC 130
Perpetual Trustee v Khoshaba [2006] NSWCA 41
The Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447
Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389
Wallis v Downard-Pickford (North Queensland) Pty Ltd [1994] HCA 17; (1994) 179 CLR 388
West v AGC (Advances) Ltd (1986) 5 NSWLR 610
Category: Principal judgment
Parties: HomeSec Finance Express Pty Ltd (P1)
Luc Jean Pierre (P2)
Hedley Murdoch (P3)
Jill Richardson (D)
Representation: Counsel:
M J Cohen (P1-3)
S T Haddad (D)
Solicitors:
Ronayne Lawyers Pty Ltd (P1-3)
Self (D)

File Number(s): 2011/195194

Judgment

1. Introduction

Pursuant to a statement of claim filed on 15 June 2011, the plaintiffs claim a judgment for possession with regard to two pieces of land. They also seek repayment of a loan plus very substantial interest. They rely on a loan contract of 28 October 2010 and a registered mortgage of the same date.

By way of an amended defence and cross claim, the defendant seeks to resist those orders. The amended…

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 1375
Decision Date: 14 November 2012

CaseChat Overview and Summary

HomeSec Finance Express Pty Ltd, a lender, initiated proceedings against its borrower, Richardson, seeking possession of a property and a monetary order. The dispute centred on the enforceability of a loan agreement and a registered mortgage. The case was heard in the Supreme Court of Queensland. The primary legal issues revolved around whether the conduct of the mortgage broker constituted agency, the applicability of the Contracts Review Act 1980, and whether the lender's actions were unconscionable or unjust. The court had to determine whether the loan was for a business purpose or asset lending and assess the factual matters under section 9 of the Contracts Review Act 1980.

The court examined the nature of the loan agreement and the role of the mortgage broker. It concluded that the loan was not for asset lending but was intended for a business purpose. The broker's conduct did not amount to agency, as there was no evidence of the lender authorising the broker to act on its behalf. The court also found that the lender's conduct was not unconscionable or unjust under the Contracts Review Act 1980. It noted that the Trade Practices Act and Fair Trading Act were not applicable to the case. The court considered the overall fairness of the transaction and the lender's actions in light of the relevant statutory provisions.

In light of the above findings, the court ruled in favour of the lender, HomeSec Finance Express Pty Ltd. The loan agreement and registered mortgage were deemed enforceable, and the lender was entitled to the relief sought. The court ordered that the borrower, Richardson, be required to pay the outstanding loan amount, along with interest and costs. Additionally, the court granted an order for possession of the property, enabling the lender to take appropriate action to recover the property.

Orders