Westendorp & Anor v Morlend Finance Corporation (Vic) Pty Ltd

The applicants, Gert Westendorp and Anna John William Westendorp, and Mary Annette Westendorp, sought special leave to appeal to the High Court of Australia from a decision of the Full Court. The dispute concerned whether a mortgage executed by the applicants was unjust, which would have given the tribunal jurisdiction to grant relief under section 146(2) of the Credit Act. The Full Court had held that the mortgage was not unjust and therefore the tribunal lacked jurisdiction.

The primary legal issue before the Full Court was the interpretation of "unjust contract" or "unjust mortgage" within the context of the Credit Act. Specifically, the court had to determine whether the definition of an unjust contract or mortgage was exclusively confined to the criteria set out in section 145 of the Act, which specified contracts or mortgages that were unconscionable, harsh, or oppressive, or those with an excessive annual percentage rate or interest rate.

The Full Court reasoned that section 145 exclusively defined an unjust contract or mortgage. This interpretation was based on the language of section 145 and the principle that a broader, more general notion of injustice would be too vague and uncertain for legal application, whereas the concepts of unconscionability, harshness, or oppressiveness were well-established legal principles. The applicants argued that this construction was erroneous, contending that section 147(1) indicated a broader scope for determining injustice, requiring consideration of all circumstances relating to the contract or mortgage at the time it was entered into, as well as the public interest. They submitted that section 147(2), which listed relevant circumstances to be taken into account, demonstrated that events could arise that would render a contract or mortgage unjust, even if it did not strictly fall within the categories in section 145.