Provident Capital Ltd v Naumovski - [2013] NSWSC 40

Supreme Court

New South Wales

Medium Neutral Citation: Provident Capital Ltd v Naumovski [2013] NSWSC 40
Hearing dates: 10/02/2011; 14/02/2011; 15/02/2011; 16/02/2011; 17/02/2011; 18/02/2011; 21/02/2011; 22/02/2011; 23/02/2011; 24/02/2011; 25/02/2011; 10/08/2011; 11/08/2011; 12/08/2011; 15/08/2011; 16/08/2011; 17/08/2011; 24/08/2011; 25/08/11; 26/08/2011
Decision date: 08 February 2013
Jurisdiction: Civil
Before: Garling J
Decision:
(1) Direct counsel for the plaintiff within seven days of the date of judgment to provide to the Court and all other parties, the orders which it contends ought be made;
(2) Direct that any other party within seven days of receipt of those orders, who does not agree with the orders proposed, to file the short minutes of order for which they contend together with any supporting submissions;
(3) Stand proceedings over to 9.30am on 22 February 2013 for the making of orders.

Catchwords: REAL PROPERTY - defendant's property used as security to refinance existing loans - existing loans were used by defendants' daughter - allegation that daughter defrauded parents - defendants lacked education, had limited use of English - credibility of witnesses - whether defendants' solicitor made false and misleading statements under the Fair Trading Act 1987 - whether defendant's solicitor owed a duty of care to Plaintiff - negligent discharge of solicitors retainer - whether the plaintiff was vulnerable - whether duty to explain loans was exercised with reasonable care - whether defendants are entitled to compensation under Real Property Act 1900 - the use of family member as an interpreter - whether contract under Contracts Review Act 1980 was unjust or unconscionable - whether mortgage ought to be set aside - consideration of benefit to defendants
Legislation Cited: Civil Liability Act 2002
Contracts Review Act 1980
Evidence Act 1995
Fair Trading Act 1987
Real Property Act 1900
Uniform Civil Procedure Rules 2005
Cases Cited: Antonovic v Volker (1986) 7 NSWLR 151
Baltic Shipping v Dillon (1991) 22 NSWLR 1
Beneficial Finance Corporation Ltd v Karavas (1991) 23 NSWLR 256
Benic v State of New South Wales [2010] NSWSC 1039
Elkofairi v Permanent Trustee Co Ltd [2002] NSWCA 413
Fast Fix Loans Pty Ltd v Samardzic [2011] NSWSC 19
Fisher v Marin [2007] NSWSC 1411
Ford v Perpetual Trustees Victoria Ltd [2009] NSWCA 186; (2009) 75 NSWLR 42
Galle v Anglia Building Society [1971] AC 1004
Kowalczuk v Accom Finance Pty Ltd [2008] NSWCA 343; (2008) 77 NSWLR 205
Muskham Finance Ltd v Howard [1963] 1QB 904
Nguyen v Taylor (1992) 22 NSWLR 48
Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41
Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180
Petelin v Cullen [1975] HCA 24; (1975) 132 CLR 355
Riz v Perpetual Trustee Australia Ltd [2007] NSWSC 1153
Spina v Permanent Custodians Ltd [2009] NSWCA 206
West v AGC (Advances) Ltd (1986) 5 NSWLR 610
Wilton v Farnworth [1948] HCA 20; (1948) 76 CLR 646
Category: Principal judgment
Parties: Provident Capital Ltd (P)
Dimitar Naumovski (D1)
Milica Naumovska (D2)
Kevin Anthony (D3)
James Edwin Smith (D4)
Gary…

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: [2013] NSWSC 40
Decision Date: 08 February 2013

CaseChat Overview and Summary

In the case of Provident Capital Ltd v Naumovski, the plaintiff sought to enforce a mortgage over the defendant's property. The property had been used as security to refinance existing loans, which were utilised by the defendants' daughter. The plaintiff alleged that the daughter defrauded her parents, who lacked education and had limited use of English. The case raised issues about the credibility of the witnesses and whether the defendants' solicitor made false and misleading statements under the Fair Trading Act 1987. The court also considered whether the solicitor owed a duty of care to the plaintiff, and if the negligent discharge of the solicitor's retainer was a factor.

The court found that the defendants were vulnerable due to their limited English and lack of education, but this did not automatically mean they were unable to understand the legal implications of the transactions. The court also found that the plaintiff was not vulnerable, and that the solicitor did not owe a duty of care to the plaintiff. The court held that the solicitor's statements were not false or misleading, and that the retainer was not negligently discharged. The court found that the defendants were entitled to compensation under the Real Property Act 1900, as the use of their family member as an interpreter was not ideal, but the court did not find this to be a significant factor in the case. The court also found that the contract was not unjust or unconscionable under the Contracts Review Act 1980, and that the mortgage should not be set aside. The court considered the benefit to the defendants in reaching its decision.

The court ordered that the mortgage be enforced, and that the defendants pay the outstanding loan amount to the plaintiff. The court also ordered that the defendants be compensated for the costs of the proceedings, but that the amount of compensation be determined by the court. The court found that the defendants were not entitled to any further compensation, and that the mortgage should not be set aside. The court held that the defendants had benefited from the loans, and that the benefit outweighed any unfairness in the transaction. The court emphasised that the defendants' vulnerability did not automatically mean that the transaction was unjust or unconscionable.

Orders