Perpetual Trustees Victoria Ltd v Burns

The case of Perpetual Trustees Victoria Ltd v Burns involved a dispute regarding a mortgage and the conduct of intermediaries of the lender. The plaintiff sought recovery of possession of property, while the defendants counterclaimed for relief related to the conduct of the lender's intermediaries. The case also involved issues of low documentary loans, unconscionable conduct, and misleading and deceptive conduct. The defendants argued that the transaction should be set aside due to the unconscionable conduct of the lender's intermediaries.

The legal issues that the court had to address included whether damages could be awarded for unconscionable conduct, and if so, what form those damages should take. The court also needed to consider whether the transaction could be set aside and, if so, what relief the defendants were entitled to. The court had to balance the need to provide relief to the defendants against the need to ensure that the plaintiff was not left without remedy.

The court found that while damages for unconscionable conduct may be available in some circumstances, they were not appropriate in this case. Instead, the court ordered that the impugned transactions be set aside as far as practicable, and that the defendants be required to make payments or restitution so far as necessary to return the parties to the position they would have been in had the impugned transactions not occurred. The court emphasised that when granting such relief, it would impose such terms as it deemed necessary to do equity, consistent with the maxim that "he who seeks equity must do equity."

The court ordered that the mortgage be discharged and that the defendants be required to make certain payments to the plaintiff. The court also ordered that the defendants pay the plaintiff's costs of the proceeding.