Nikoloff v Perpetual Trustee Company Limited [No 2]

In the Court of Appeal of the Supreme Court of Western Australia, the appeal by Nadia Nikoloff against the Perpetual Trustee Company Limited was dismissed. The case involved a mortgagee recovery action initiated by Perpetual against Nikoloff, who had defaulted on a loan agreement. The appeal contested the acting master's decision to grant summary judgment to Perpetual. Nikoloff argued that the loan agreement's interest rate variation clause was void for uncertainty, that she was under a special disadvantage, and that Perpetual had engaged in unconscionable conduct.

The Court of Appeal found that the interest rate variation clause was not void for uncertainty as it provided a clear mechanism for rate changes based on published rates. The Court held that the clause did not confer an unfettered discretion on Perpetual to vary rates, as it required adherence to published rates. Regarding unconscionability, the Court found that Nikoloff did not suffer from a special disadvantage or disability that would seriously affect her ability to judge her own best interests. The Court also rejected the arguments that Perpetual had engaged in unconscionable conduct under equity or the Australian Securities and Investments Commission Act 2001. The appeal was dismissed, and the application to adduce additional evidence was refused as it was not shown to be necessary or significant enough to affect the outcome.