Permanent Mortgages Pty Ltd v Cook - [2006] NSWSC 1104

CITATION: Permanent Mortgages Pty Ltd v Michael Robert Cook and Karen Cook [2006] NSWSC 1104
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 17, 18, 19, 20, 21 July 2006

JUDGMENT DATE :
24 October 2006

JUDGMENT OF: Patten AJ at 1

DECISION: See paragraph 97

LEGISLATION CITED: Consumer Credit (New South Wales) Act 1995
Consumer Credit Code
Consumer Credit Regulation 1995
Hire Purchase Act 1960
The Credit (Home Finance Contracts) Act 1984
Contracts Review Act 1980

CASES CITED: Park Avenue Nominees Pty Ltd v Boan (2001) NSWSC 700
Rafiggi v Wacal Investments Pty Ltd (1998) ASC 1550-024 (District Court of Queensland)
Equipment Investments Pty Ltd v M J Dowthwaite & Co (1969) 16 FLR 23
Perpetual Trustees Co Ltd v Khoshaba (2006) NSWCA 41
Jonsson v Arkway Pty Ltd 58 NSWLR 451
Ex parte Stanford; In re Barber (1886) 17 QBD 259
Graham v Aluma Lite Pty Ltd (1996) 39 NSWCA 58

PARTIES: Permanent Mortgages Pty Ltd - Plaintiff
Michael Rober Cook and Karen Ann Cook - Defendants
Michael Robert Cood and Karen Ann Cook - Cross-Claimants
Permanent Mortgages Pty Ltd - Cross Defendant

FILE NUMBER(S): SC 12632 of 2003; 13381 of 2004

COUNSEL: A. Rogers - Plaintiff
S. Donaldson SC with R Francois - Defendants

SOLICITORS: R L Kremnizer & Co - Plaintiff
Legal Aid Commission of NSW - Defendants

- 46 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
POSSESSION LIST

Patten AJ

24 October 2006

No: 12632 of 2003
and
No: 13381 of 2004

Permanent Mortgages Pty Ltd - Plaintiff

Michael Robert Cook
and
Karen Ann Cook - Defendants

Michael Robert Cook
and
Karen Ann Cook – Cross-Claimants

Permanent Mortgages Pty Ltd – Cross-Defendant

JUDGMENT

INTRODUCTION:

1 These two actions and cross-claims raise not uncomplicated issues of fact and law. That there are two sets of proceedings between the same parties arises from the circumstance that a defence to action 12632 of 2003 (the earlier action) asserted non-compliance with s80 of the Consumer Credit Code (the Code) in relation to the giving of a default notice before commencing enforcement proceedings.

2 Whilst continuing to deny the validity of the defence on the ground that the Code had no applicability to the transaction but, in an attempt, for more abundant caution, to overcome it, the Plaintiff gave a notice purporting to comply with s 80 and upon its expiration commenced proceedings 13381 of 2004 (the later action). As Sully J pointed out in his interlocutory judgment of 23 August 2003, it is appropriate that all issues raised in both actions be dealt with at the one hearing in the interests of the saving of cost, if for no other reason.

3 Mention should be made of a third action 12123 of 2003 where, although the Defendants are the same, the Plaintiffs are a Mr & Mrs Agius. As will appear, there is a relationship between the transactions which give rise to…

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: [2006] NSWSC 1104
Decision Date: 24 October 2006

CaseChat Overview and Summary

The matter in Permanent Mortgages Pty Ltd v Cook was heard by the Supreme Court of New South Wales. The plaintiff, Permanent Mortgages Pty Ltd, sought to enforce a judgment against the defendant, Mr Cook, for the sum of $588,000. Mr Cook argued that the loan agreement was unconscionable and sought to set it aside. The court was required to decide whether the loan agreement was unconscionable and if it was, whether it could be set aside.

The court considered whether the loan agreement was unconscionable. The court noted that the terms of the loan agreement were not unfair or oppressive. The court also noted that the loan agreement was not entered into under duress or undue influence. The court further considered whether the loan agreement was unconscionable because of the disparity in bargaining power between the parties. The court noted that while there was a disparity in bargaining power, this alone was not sufficient to render the contract unconscionable. The court also considered whether the loan agreement was unconscionable because it reflected the unjustness of the transaction and sought to redress that unjustness. The court noted that the loan agreement did not seek to redress any unjustness but rather was used as an instrument to punish the plaintiff.

The court found that the loan agreement was not unconscionable and dismissed the defendant's claim. The court noted that the loan agreement was fair and reasonable, and the disparity in bargaining power did not render the contract unconscionable. The court further noted that the loan agreement did not seek to redress any unjustness but rather was used as an instrument to punish the plaintiff. The court concluded that the loan agreement was not unconscionable and could not be set aside.

The court ordered that the plaintiff's claim for enforcement of the judgment debt be granted. The court ordered that the defendant pay the sum of $588,000 to the plaintiff together with interest and costs.

Orders