Spina v Permanent Custodians Ltd

Case [2009] NSWCA 206



New South Wales


Court of Appeal


CITATION: Spina v Permanent Custodians Limited [2009] NSWCA 206
HEARING DATE(S): 20 May 2009
 
JUDGMENT DATE: 

22 July 2009
JUDGMENT OF: Tobias JA at [1]; Campbell JA at [2]; Young JA at [3]
DECISION: (1) Appeal allowed with costs; (2) Orders below set aside; (3) Complex order made in lieu varying loan agreement and supporting mortgage; (4) Order that defendant pay 85% of plaintiff's costs below.
CATCHWORDS: CONTRACTS - Contracts Review Act 1980- that a loan agreement and supporting mortgage should be set aside- whether transactions were unjust when entered into and whether the court should grant relief- elderly mother and son entered into loan agreement with respondent- securing mortgage over mother's house- lending guidelines- independent legal advice. EQUITY- unconscionability- elder law- whether transaction ought to be set aside.
LEGISLATION CITED: Civil Procedure Act 2005, s 101
Contracts Review Act 1980, ss 7, 9, 19
Powers of Attorney Act 2003
CATEGORY: Principal judgment
CASES CITED: Abbott v UDC Finance Ltd [1992] 1 NZLR 405 (CA)
Accom Finance Pty Ltd v Mars Pty Ltd (2007) 13 BPR 24,729
Ardern v Bank of New South Wales [1956] VLR 569
Barclays Bank plc v O'Brien [1994] 1 AC 180
Barclays Bank plc v Thomson [1997] 4 All ER 816
Beneficial Finance Corporation Ltd v Karavas (1991) 23 NSWLR 256
Bridgewater v Leahy (1998) 194 CLR 457
Elkofairi v Permanent Trustee Co Ltd (2002) 11 BPR 20,841
Garcia v National Australia Bank Ltd (1998) 194 CLR 395
Kleinwort Benson Australia Ltd v Armitage (Cole J, 26 April 1989, unreported)
Kowalczuk v Accom Finance Pty Ltd (2008) 252 ALR 55
Longmate v Ledger (1860) 2 Giff 157; 66 ER 67
National Australia Bank v Hall (1993) NSW Conv R 55-684
National Australia Finance Ltd v Fahey [1990] 2 NZLR 482
Pasternacki v Correy [2001] ANZ ConvR 240
Perpetual Trustee Company Limited v Khoshaba [2006] NSWCA 41
Ribchenkov v Suncorp-Metway Ltd (2000) 175 ALR 650
Riz v Perpetual Trustee Australia Ltd (2008) NSW Conv R 56-198
Vakele Pty Ltd v Assender (1989) 4 BPR 9591
Vella v Permanent Mortgages Pty Ltd (2008) 13 BPR 25,343
PARTIES: Joe Spina (Appellant)
Permanent Custodians Limited (Respondent)
FILE NUMBER(S): CA 40313/08
COUNSEL: A Leopold SC and J Clifton (Appellant)
S A Gregory (Respondent)
SOLICITORS: Grogan & Webb Solicitors (Appellant)
Hicksons Lawyers (Respondent)
LOWER COURT JURISDICTION: Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S): SC 2393/06
LOWER COURT JUDICIAL OFFICER: Hammerschlag J
LOWER COURT DATE OF DECISION: 30 June 2008
LOWER COURT MEDIUM NEUTRAL CITATION: Angelina Spina v Permanent Custodians Ltd [2008] NSWSC 561




                          CA 40313/08
                          SC 2393/06

                          TOBIAS JA
                          CAMPBELL JA
                          YOUNG JA

                          Wednesday 22 July 2009
SPINA v PERMANENT CUSTODIANS LIMITED
Headnote

[This headnote does not form part of the judgment]

On 24 October 2003, Angelina Spina (who is now deceased) and her son, Michael (who is also, now, deceased), on the one part, and Permanent Custodians, the respondent, on the other part, entered into a Loan Agreement. Under…

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AGLC
Spina v Permanent Custodians Ltd [2009] NSWCA 206
Case
[2009] NSWCA 206
Decision Date

CaseChat Overview and Summary

The dispute in *Spina v Permanent Custodians Ltd* concerned an application to set aside a loan agreement and a supporting mortgage entered into by an elderly mother and her son with the respondent. The application was heard in the Court of Appeal of New South Wales.

The primary legal issues before the court were whether the loan agreement and mortgage were unjust at the time they were entered into, and consequently, whether the court should grant relief under the Contracts Review Act 1980 (NSW). The court also considered principles of unconscionability and elder law in determining whether the transactions ought to be set aside.

The Court of Appeal allowed the appeal, setting aside the orders made by the court below. The court varied the loan agreement and the supporting mortgage, indicating that the original transactions were found to be unjust. The court ordered that the defendant pay 85% of the plaintiff's costs at first instance.

Orders

Orders of the court

(1) Appeal allowed with costs; (2) Orders below set aside; (3) Complex order made in lieu varying loan agreement and supporting mortgage; (4) Order that defendant pay 85% of plaintiff's costs below.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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