PERMANENT MORTGAGES PTY LTD -v- VANDENBERGH [2010] WASC 10 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2010] WASC 10 (S)
Case No:	CIV:1074/2007	Heard:	18-20 AUGUST 2009, ON THE PAPERS & 12 MARCH 2010
Coram:	MURPHY J	Delivered:	29/01/10
Supplementary Delivered:	1/04/10
No of pages:	16	Judgment Part:	1 of 1
Result:	Orders conditional upon restitution by secondnamed defendant Declaration of unconscionable conduct and/or contravention of s 51AC Trade Practices Act 1974 (Cth) Mortgage set aside ab initio Loan agreement set aside ab initio as against second-named defendant Consequential orders made
Category:	B
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Parties:	PERMANENT MORTGAGES PTY LTD JULES JOSEPH VANDENBERGH MARIA HUBERTINA VANDENBERGH
Catchwords:	Indefeasibility Personal equity Unconscionable dealing Joint tenants Whether registered mortgage should be set aside as a whole or in part Equity Unconscionable conduct Scope of restitution Appropriate relief Trade Practices Act 1974 (Cth) Section 87(2) relief
Legislation:	Bankruptcy Act 1966 (Cth), s 153(1), s 153(2)(b) Trade Practices Act 1974 (Cth), s 51AC, s 87(2) Transfer of Land Act 1893 (WA), s 121, s 122
Case References:	Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447 Elkofairi v Permanent Trustee Co Ltd [2002] NSWCA 413; (2003) 11 BPR 20,841 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 Flourentzou v Commonwealth Bank of Australia [1998] ANZ ConvR 188 Maguire v Makaronis [1997] HCA 23; (1997) 188 CLR 449 National Commercial Banking Corporation of Australia Ltd v Hedley (1984) 3 BPR 9477 Spence v Crawford [1939] 3 All ER 271

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : PERMANENT MORTGAGES PTY LTD -v- VANDENBERGH [2010] WASC 10 (S) CORAM : MURPHY J HEARD : 18-20 AUGUST 2009, ON THE PAPERS & 12 MARCH 2010 DELIVERED : 29 JANUARY 2010 SUPPLEMENTARY
DECISION : 1 APRIL 2010 FILE NO/S : CIV 1074 of 2007 BETWEEN : PERMANENT MORTGAGES PTY LTD

Plaintiff

AND

JULES JOSEPH VANDENBERGH

MARIA HUBERTINA VANDENBERGH

Defendants

Catchwords:

Indefeasibility - Personal equity - Unconscionable dealing - Joint tenants - Whether registered mortgage should be set aside as a whole or in part

Equity - Unconscionable conduct - Scope of restitution - Appropriate relief

Trade Practices Act 1974 (Cth) - Section 87(2) relief

(Page 2)

Legislation:

Bankruptcy Act 1966 (Cth), s 153(1), s 153(2)(b)

Trade Practices Act 1974 (Cth), s 51AC, s 87(2)
Transfer of Land Act 1893 (WA), s 121, s 122

Result:

Orders conditional upon restitution by secondnamed defendant

Declaration of unconscionable conduct and/or contravention of s 51AC Trade Practices Act 1974 (Cth)
Mortgage set aside ab initio
Loan agreement set aside ab initio as against second-named defendant
Consequential orders made

Category: B

Representation:

Counsel:

Plaintiff : Mr D H Solomon

Defendants : Mr D R Williams QC & Mr A J Camp

Solicitors:

Plaintiff : Solomon Brothers

Defendants : Butcher Paull & Calder

Case(s) referred to in judgment(s):

Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447
Elkofairi…

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: [2010] WASC 10 (S)
Decision Date: 29 JANUARY 2010

CaseChat Overview and Summary

The matter involved Permanent Mortgages Pty Ltd as the plaintiff and Vandenbergh and another party as defendants. The dispute revolved around the validity of a mortgage and loan agreement, specifically whether these should be set aside due to alleged unconscionable conduct and contravention of the Trade Practices Act 1974 (Cth). The case was heard in a court in Australia. The primary issues before the court were whether the mortgage and loan agreement were affected by unconscionable conduct, whether the mortgage should be set aside in its entirety or partially, and the appropriate relief that should be granted. The court had to determine if there was sufficient evidence of unconscionable conduct by the plaintiff and if such conduct warranted setting aside the mortgage and loan agreement.

The court examined the nature of the relationship between the parties, the terms of the mortgage and loan agreement, and the circumstances surrounding the transactions. It was noted that the defendants were joint tenants and the mortgage was registered. The court assessed whether the registered mortgage should be set aside as a whole or in part, considering the defendants' personal equity and the applicability of unconscionable conduct. The court also considered the extent of any restitution and whether it should be ordered under section 87(2) of the Trade Practices Act 1974 (Cth). The analysis included an examination of the principles of equity and the appropriate scope of relief to address the defendants' claims.

The court found that the mortgage and loan agreement were indeed affected by unconscionable conduct and that the mortgage should be set aside in its entirety. The court declared the conduct to be unconscionable and a contravention of the Trade Practices Act 1974 (Cth). Consequently, the mortgage and loan agreement were set aside ab initio, and consequential orders were made. The relief granted was conditional upon the restitution by the second-named defendant. The court's decision provided clarity on the appropriate legal remedies in cases involving unconscionable conduct in mortgage transactions.

Orders

Orders of the court

Orders conditional upon restitution by secondnamed defendant

Declaration of unconscionable conduct and/or contravention of s 51AC Trade Practices Act 1974 (Cth)

Mortgage set aside ab initio

Loan agreement set aside ab initio as against second-named defendant

Consequential orders made

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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