JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: PERMANENT CUSTODIANS LTD -v- SHANNON [No 2] [2018] WASC 295
CORAM: LE MIERE J
HEARD: 4-8 DECEMBER 2017
DELIVERED : 21 SEPTEMBER 2018
FILE NO/S: CIV 1174 of 2013
BETWEEN: PERMANENT CUSTODIANS LTD
Plaintiff
AND
ANITA LOUISE SHANNON
First Defendant
CHRISTOPHER CHARLES SHANNON
Second Defendant
ANITA LOUISE SHANNON
First Plaintiff by Counterclaim
CHRISTOPHER CHARLES SHANNON
Second Plaintiff by Counterclaim
AND
PERMANENT CUSTODIANS LTD
First Defendant by Counterclaim
GEL CUSTODIANS PTY LTD
Second Defendant by Counterclaim
AUSTRALIAN MORTGAGE SECURITIES PTY LTD
Third Defendant by Counterclaim
AFIG WHOLESALE PTY LTD
Fourth Defendant by Counterclaim
REGISTER OF TITLES
Fifth Defendant by Counterclaim
PEPPER GROUP LTD
Sixth Defendant by Counterclaim
Catchwords:
Contract law - Mortgage contract - Default - Repayments not made in accordance with terms of agreement
Contract law - Enforceability of contract - Terms and conditions - Whether terms and conditions contained in separate document form part of the contract
Contract law - Agency - Whether intermediary between lender and borrower was an agent of the lender
Contract law - Whether assignment of rights, title and interest was effective
Contract law - Misrepresentation - Whether transaction is void or voidable as a result of misrepresentation
Misleading and deceptive conduct - Whether representations were misleading or deceptive under ASIC Act 2001 (Cth) s 12DA - Whether false or misleading representations made in contravention of National Credit Code s 124 and s 154 or Consumer Credit (Western Australia) Code s 144 and s 114
General law - Unconscionable conduct - Whether defendants were in a position of weakness and vulnerability and accordingly under a special disability at the time of entering the contract
Statutory unconscionable conduct - Whether procuring mortgage and loan was unconscionable conduct in contravention of ASIC Act 2001 (Cth) s 12CB
Property law - Fraud - Whether mortgage is void pursuant to Transfer of Land Act 1983 (WA) s 214A
National Credit Code - Unjust transactions - Whether transaction should be reopened pursuant to s 76
Limitation periods - Valid cause of action - Whether various claims by the defendant are time barred
Legislation:
Australian Securities and Investments Commission Act 2001 (Cth), s 12CB, s 12DA, s 12GF, s 12GM
Consumer Credit (Western Australia) Code (WA), s 114, s 144
Limitation Act 2005 (WA), s 13, s 38
National Credit Code (Cth), s 76, s 77, s 124, s 154, s 188
Transfer of Land Act 1893 (WA), s 214, s 214A
Result:
Judgment for the plaintiff
Defendants' counterclaims dismissed
Category: B
Representation:
Original Action
Counsel:
| Plaintiff | : | Mr G D Cobby |
| First Defendant | : | Mr M M Mony de Kerloy |
| Second Defendant | : | Mr M M Mony de Kerloy |
Solicitors:
| Plaintiff | : | Norton Rose Fulbright Australia |
| First Defendant | : | Mony De Kerloy Barristers and Solicitors |
| Second Defendant | : | Mony De Kerloy Barristers and Solicitors |
Counterclaim
Counsel:
| First Plaintiff by Counterclaim | : | Mr M M Mony de Kerloy |
| Second Plaintiff by Counterclaim | : | Mr M M Mony de Kerloy |
| First Defendant… |
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- Case
- [2018] WASC 295
- Decision Date
CaseChat Overview and Summary
The court examined the mortgage agreement and the related documents, including the terms and conditions contained in a separate document. The court considered whether these terms and conditions formed part of the contract and were enforceable. The court also assessed the role of the intermediary between the lender and the borrower, determining whether the intermediary acted as an agent of the lender. The court found that the intermediary was not an agent of the lender and that the assignment of rights, title, and interest was effective. The court further examined whether the transaction was void or voidable due to misrepresentation, misleading or deceptive conduct, unconscionable conduct, or fraud. The court concluded that the transaction was not void or voidable on these grounds.
The court determined that the defendants' claims were either time-barred or without merit. The court found that the mortgage agreement was enforceable and that the terms and conditions were part of the contract. The court also found that the intermediary was not an agent of the lender and that the assignment of rights, title, and interest was effective. The court rejected the defendants' claims of misrepresentation, misleading or deceptive conduct, unconscionable conduct, or fraud. The court found that the defendants' claims were time-barred or without merit, and accordingly dismissed the defendants' claims. The court ordered the defendants to pay the plaintiff's costs of the proceeding.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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