Russo v Buck

In the case of Russo v Buck, the appellant, Mr Russo, appealed against the orders of the trial judge. The central issue was whether the trial judge erred in making specific findings of fact regarding the contract of loan and mortgage. Additionally, the court had to determine if the contract, as performed, was illegal, which would have precluded the respondents from recovering on the contract. The appeal also addressed the costs order, which required the appellant to pay half of the respondents' costs of the action on an indemnity basis.

The court considered the principles relating to the illegality of a contract and found that the argument based on illegality was not raised on the pleadings nor argued at the trial. The court held that there was no error by the trial judge in the findings of fact. The failure to raise the illegality argument at trial precluded the appellant from raising it on appeal. Furthermore, the court found no relevant illegality demonstrated in any event. Therefore, the appeal was dismissed.

The appeal against the costs order was also dismissed. The mortgage agreement contained a clause that required the appellant to indemnify the respondents in respect of any challenge to or resistance of the respondents’ rights under the mortgage. The court held that there was no error, unreasonableness, or injustice demonstrated in the costs order, and thus the appeal was dismissed.

The court's decision upheld the trial judge's findings and conclusions, affirming that the respondents were entitled to claim repayment of the first loan. The court also dismissed the claims made by Mr Russo against PFM and Ms Conn. The determination of the amount due and owing by Mr Russo to Mr and Mrs Buck was referred to a master.