Perpetual Trustees Vic Ltd v Bodiroza - [2009] NSWSC 861

CITATION: PERPETUAL TRUSTEES VIC LTD v BODIROZA [2009] NSWSC 861

HEARING DATE(S): 9 December 2008

JUDGMENT DATE :
28 August 2009

JUDGMENT OF: Hulme J at 1

DECISION: I publish these reasons
I stand the matter over to Tuesday 24 November 2009 at 9.30am for mention
I grant libety to the parties to approach my associate for the fixing of a further date for hearing (and if that is done and the parties consent, to vacate 24 November 2009 mention)

PARTIES: Perpetual Trustees Victoria Limited - Plaintiff
Slavica Bodiroza - Defendant

FILE NUMBER(S): SC 13071/2007

COUNSEL: Mr A Rogers - Plaintiff
Ms M Tibbey - Defendant

SOLICITORS: Kemp Strang
Bozinovska & Co

- 37 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

RS HULME J

Friday, 28 August 2009

PERPETUAL TRUSTEES VICTORIA LIMITED v Slavica BODIROZA

JUDGMENT

1 RS HULME J: The Defendant is the owner of land at 7/118 Elizabeth Drive Liverpool, being the land contained in CT Folio Identifier 7/SP12051. Pursuant to mortgage number 939257, dated 24 January 2003, the Plaintiff is the mortgagee of that land having, on or about that date, lent the Plaintiff a sum of $160,000 that was employed by the Plaintiff in the purchase of the property for the sum of $200,000.

2 The Plaintiff claims that as at 19 February 2007 the Defendant was in default in an amount of $2,887.22 on account of “principal, interest and fees” that had not been paid when due, and that she further failed to comply with a default notice served on 27 February 2007. By an Amended Statement of Claim filed on 27 October 2008, the Plaintiff claims:-

(i) An order for possession of the land, or alternatively

(ii) An order for restitution in the sum of $160,000 and

(iii) Interest.

3 In fact the Plaintiff’s payment records show that the Defendant made her first payment of interest on 24 February 2003. On the following day, the payment was dishonoured and she thus fell into default. A payment in March 2003 was also dishonoured although the Defendant seems to have substantially made up the 2 dishonoured payments later in March. Other dishonoured payments occurred in January and May 2004 and in a number of months of 2005 and 2006. However the extent of the default at any one time seems not to have exceeded about $1,500 until June 2006. It fluctuated for some time above and below this figure until November 2006 when it reached about $2,500 from which time it never reduced below that amount. By June 2007 it reached $10,000. There were then some payments but in July 2007 it was $8,000 after which it has increased because of both non-payment of interest and legal fees.

4 In the Defence filed the Defendant indicated reliance on the Contracts Review Act and a number of the provision of the Consumer Credit Code. However, at the time of trial, it was only the first of these that was relied upon.

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: [2009] NSWSC 861
Decision Date: 28 August 2009

CaseChat Overview and Summary

Perpetual Trustees Victoria Limited sought an order for possession of a property mortgaged by Slavica Bodiroza, or alternatively, restitution of the loan amount plus interest. Bodiroza defended the proceedings on the basis that the mortgage was unjust under the Contracts Review Act 1980. The court had to decide whether the mortgage was unjust and, if so, what relief should be granted.

The court found that the signatures on some of the documents were not Bodiroza's and that the tax returns and other documents were likely falsified by intermediaries. Despite Bodiroza's signature on other documents, the court concluded that she did not fully understand the extent and consequences of the mortgage. The court found the mortgage unjust due to its improvidence, Bodiroza's inability to protect her own interests, lack of expert advice, and the falsity of the documents. However, the court did not find the public interest in holding parties to their contracts or the Plaintiff's conduct to be relevant.

The court stood the matter over for further evidence and granted liberty to the parties to fix a further hearing date. The court suggested that if Bodiroza could not make other arrangements to finance the property, the Plaintiff should be repaid sooner rather than later, potentially through the sale of the unit. Any order should take into account the rent received by Bodiroza, costs, and interest paid. If a sale did not realise enough for Bodiroza to receive back her investment and for the Plaintiff to receive its entitlement, the loss should be shared in some fashion.

Orders