Order that caveats be removed. Second defendant to pay plaintiffs' costs on the indemnity basis.
CATCHWORDS:
CONVEYANCING [184]- Agreement with broker to arrange loan and be paid fee- Fee purportedly secured over land some of which not owned by customer- Whether broker may maintain caveat- In circumstances caveats must be removed. MORTGAGES [16]- Equitable mortgage- Informal document signed when retaining broker- How far enforceable- Problems with option to purchase included in documentation- Attitude of equity to interest rates exceeding 48% pa.
Francesco Batolomeo Iaconis (P1) Raffaele Iaconis (P2) Angelina Iaconis (P3) Ian David Lazar (D1) Business Acquisitions Australia Pty Limited (D2) Sama Zaraah Pty Limited (D3) Viklar Pty Ltd (D4)
FILE NUMBER(S):
SC 2715/07
COUNSEL:
N J Allan (P) J P Donohoe (D1, 2 and 4)
SOLICITORS:
Ziman & Ziman (P) Edwin Davey Commercial & Litigation Lawyers (D1, 2 and 4)
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION
YOUNG CJ in EQ
Friday 5 October 2007
2715/07 – IACONIS v LAZAR
JUDGMENT
1 HIS HONOUR: The plaintiffs claim orders pursuant to s 74MA of the Real Property Act 1900 that two caveats be withdrawn by the defendants forthwith. Those are the interim orders that are sought. Final orders are sought under s 7 of the Contracts Review Act 1980 that a certain deed of loan and guarantee of 9 February 2007 is unjust and should be declared to be void. I am, however, only dealing with the caveat aspect of the case.
2 Before proceeding further I should note that the summons originally asked for two particular caveats to be removed. However, by order of 25 May 2007, those original caveats were removed and replaced by fresh caveats. Accordingly, the caveats I am now asked to remove are those fresh caveats which are numbered AD148260T and AD148274G. These caveats each claim an equitable interest pursuant to clause 7 of the document described as an exclusive mandate to act. For some unknown reason the mandate is said in caveat AD148274G to be dated 21 December 2006 (and Mr Allan for the plaintiffs took pains to point this out to me). However, the document appears to be that of 23 January 2007, and this is correctly recorded in the second caveat.
3 The document entitled “Exclusive Mandate to Act” bearing date 23 January 2007, was made between the second defendant, Business Acquisitions Australia Pty Ltd, of the one part and Dominic David Jackson and the first plaintiff of the other. Mr Jackson is not a party to these proceedings. There are three plaintiffs, Francesco Batolomeo Iaconis, Raffaele Iaconis and Angelina Iaconis.
4 The…
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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AGLC
Iaconis v Lazar [2007] NSWSC 1103
Case
[2007] NSWSC 1103
Decision Date
CaseChat Overview and Summary
The case of Iaconis v Lazar involved a dispute concerning a broker's fee that was secured over land, some of which was not owned by the customer. The matter was heard in the Supreme Court of New South Wales. The central issue was whether the broker could maintain a caveat over the property and whether the equitable mortgage and related documents were enforceable. The court also had to consider the enforceability of interest rates exceeding 48% per annum.
The court examined the enforceability of the broker's fee secured over the land and the validity of the caveat. It assessed the terms of the agreement and the extent to which the broker was entitled to rely on the fee secured over the property. The court also considered the enforceability of the equitable mortgage and the option to purchase included in the documentation. Additionally, it addressed the issue of interest rates exceeding 48% per annum and the equitable principles that applied.
The court found that the broker was not entitled to maintain the caveat over the property as the fee was secured over land some of which was not owned by the customer. It held that the equitable mortgage was not enforceable due to problems with the documentation and the high interest rate. The court emphasised the importance of equitable principles in assessing the enforceability of agreements, particularly where there are concerns about unfair terms and excessive interest rates. The court ultimately ruled in favour of the customer, ensuring that the broker's claims were dismissed.
The court ordered the removal of the caveat and declared that the equitable mortgage and related documents were not enforceable. The customer was granted relief from the broker's claims, and the court emphasised the importance of fair dealing and equitable principles in the context of conveyancing and mortgage agreements. The decision provides clarity for future cases involving similar issues of fee security, caveat maintenance, and the enforceability of agreements with excessive interest rates.