Lander v Trigger - [1999] NSWSC 1253

CITATION: LANDER v TRIGGER [1999] NSWSC 1253 revised - 22/12/99

CURRENT JURISDICTION: Civil

FILE NUMBER(S): 10021/98

HEARING DATE(S): 25-26 November 1999

JUDGMENT DATE:
17 December 1999

PARTIES :

Joan Irene Lander (Plt)
Rodney Wayne Trigger (Def & X-cl)
John Alfred Ralphs (1st X-def in 1st X-cl)
Annette Marcia Ralphs (2nd X-def in 1st X-cl)
Diana Karageorge (X-def in 2nd X-cl)

JUDGMENT OF: Newman J

COUNSEL : K Tapsell (Plt, & 1st & 2nd X-def in 1st X-cl)
A Moen (Def, X-cl in both X-cl)
J Simpkins (X-def in 2nd X-cl)

SOLICITORS: Watkins Tapsell
Whitelaw McDonald
Colin Biggers & Paisley

CATCHWORDS:

ACTS CITED: Contracts Review Act
Real Property Act

DECISION: See para 64

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
NEWMAN J
FRIDAY, 17 DECEMBER 1999
10021/98 - LANDER v TRIGGER
JUDGMENT
1    HIS HONOUR: These proceedings were initially started by way of a claim for possession for land being brought by the plaintiff against the defendant. The basis of the plaintiff’s claim was that the defendant had defaulted under a mortgage.
2    The subject mortgage had originally been given by Mr and Mrs Ralphs to the defendant but had been transferred to the present plaintiff.
3 In his defence the defendant relied upon s 7 of the Contracts Review Act and unconscionability in relation to the original mortgage.
4    Furthermore the defendant then issued cross-claims against the original mortgagee, Mr and Mrs Ralphs, and a second cross-claim on the basis of professional negligence against a solicitor, Mrs Karageorge whom he had seen in relation to the original mortgage.
5    The reason why the defendant was seeking a loan in about September 1995 was that he wished to undertake a business venture with an acquaintance of his named, Peter O’Shea.
6    The business venture was to involve the pair using a truck owned by O’Shea to go into the country and to collect bush rocks. Those rocks would then be sold to nurseries and others who would wish to use rocks of that type for garden decoration.
7    At the time when O’Shea and the defendant agreed to enter into the venture, O’Shea’s truck was in need of repair.
8    One of the reasons why the defendant, who was an invalid pensioner, desired to obtain loan funds was to have the truck repaired so that the venture could proceed.
9    O’Shea suggested to the defendant that he should see a mortgage broker, one Michael Moloney, to obtain a loan. This the defendant did.
10    Mr and Mrs Ralphs were clients of a firm of solicitors known as Watson Tapsell. In particular Mr Albert Watkins of that firm was known to Mr Ralphs. Mr Ralphs had available the sum of $10,000 for investment purposes and this fact was known to Mr Watkins.
11    Apparently Mr Moloney was aware that Watkins Tapsell had clients’ funds available to lend on mortgage security.
12    Having been contacted by the defendant he wrote to that firm advising that his client wished to borrow…

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: [1999] NSWSC 1253
Decision Date: 17 December 1999

CaseChat Overview and Summary

In the case of Lander v Trigger, the plaintiff, Joan Irene Lander, sought a claim for possession of land against the defendant, Rodney Wayne Trigger, asserting that he had defaulted on a mortgage. The mortgage in question had originally been executed by Mr. and Mrs. Ralphs but had been transferred to the plaintiff. The defendant, in his defence, invoked Section 7 of the Contracts Review Act and claimed unconscionability concerning the original mortgage. Additionally, he filed cross-claims against the original mortgagee, Mr. and Mrs. Ralphs, and a claim for professional negligence against a solicitor, Mrs. Karageorge, who he consulted regarding the mortgage. The defendant’s claim was based on the contention that he was unaware of the full amount of the loan and did not fully understand the implications of the mortgage agreement.

The court was required to determine several legal issues: whether the defendant had been properly advised of his rights and responsibilities under the mortgage, whether the transaction was unconscionable, and whether the Contracts Review Act applied to preclude the defendant from relief. Furthermore, the court had to consider the validity of the plaintiff’s claim for possession and the legitimacy of the cross-claims brought by the defendant.

The court found that the defendant had indeed been thoroughly advised by Mrs. Karageorge regarding the mortgage, contrary to his claims of limited understanding. Evidence from Mrs. Karageorge and the defendant's subsequent actions post-transaction supported this finding. The court also held that the defendant's business venture, which necessitated the loan, failed due to the misconduct of his partner, not due to any fault of the defendant. Consequently, the court ruled that the transaction was not unconscionable and that Section 7 of the Contracts Review Act did not apply as the loan was for a business purpose. Additionally, the court found that the plaintiff's title under Section 42 of the Real Property Act was indefeasible, barring the defendant's claims against the Ralphs and Mrs. Karageorge.

The court concluded that the plaintiff was entitled to possession of the property, and the defendant’s cross-claims against the Ralphs and Mrs. Karageorge were dismissed. The court deferred the entry of judgment until the amounts owed by the defendant to the plaintiff could be calculated and also postponed any costs orders until the delivery of the reasons.

Orders