Wong v Novakovic

[2022] NSWSC 1072

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Wong v Novakovic [2022] NSWSC 1072

Hearing dates:

17 and 18 March 2022, submissions closed 25 May 2022

Date of orders:

12 August 2022

Decision date:

12 August 2022

Jurisdiction:

Common Law

Before:

Wright J

Decision:

(1) Judgment for possession of land may be given in this case without the plaintiff (Mr Wong) filing an affidavit complying with r 36.8(1) of the Uniform Civil Procedure Rules 2005 (NSW).

(2)   Judgment for the plaintiff for possession of the land comprised in Certificate of title folio identifier XXX being the land situated at XXX, Silverdale, NSW 2752.

(3)   Leave to issue a writ of possession forthwith.

(4)   The execution of the writ of possession is stayed until midnight on 24 September 2022 or such later time as the Court may determine.

(5)   The first and second defendants (Mr and Mrs Novakovic) are to pay the plaintiff’s costs of the plaintiff’s claim against them on an indemnity basis.

(6)   Judgment for the first cross defendant (Mr Wong) on the first cross claim.

(7)   The first cross claimant (Mrs Novakovic) is pay the first cross defendant’s costs of the first cross claim on an indemnity basis.

(8)   The parties have liberty to apply by notice of motion, filed within 14 days of these orders, seeking any further orders in this matter.

Catchwords:

CONTRACTS – Unjust contracts – Contracts Review Act 1980 (NSW) – Whether contract unjust in the circumstances at the time the contract was made – Contract not unjust in the relevant sense despite cross claimant having been under some pressure to sign it.

POSSESSION – Leave to issue writ of possession –Leave granted.

Legislation Cited:

Contracts Review Act 1980 (NSW), ss 4, 6, 7, 8, 9, 19

Uniform Civil Procedure Rules 2005 (NSW), rr 6.8, 10.14, 36.8

Cases Cited:

Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA

Canty v PaperlinX Australia Pty Ltd [2014] NSWCA 30

Capital Securities XV Pty Ltd (in liquidation) v Calleja [2020] NSWSC 301

Chung Wah Wong v Ivan Novakovic [2021] NSWSC 1130

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 9

Lauvan Pty Limited v Bega; [2018] NSWSC 154

Magann v The Trustees of the Roman Catholic Church for the Diocese of Parramatta [2020] NSWCA 167

Manly Council v Byrne [2004] NSWCA 123

Payne v Parker [1976] 1 NSWLR 191

Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41

Provident Capital Ltd v Papa (2013) 84 NSWLR 231; [2013] NSWCA 36

Secure Funding Pty Limited v Coughlin (2009) 74 NSWLR 687; [2009] NSWSC 384

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52

Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389; (2011) ASC ¶155–107

West v AGC (Advances) Ltd (1986) NSWLR 610

Wong v Novakovic [2021] NSWSC 1381

Texts Cited:

J R Peden, Harsh and Unconscionable Contracts: Report to the Minister for Consumer Affairs and Co-operative Societies and the Attorney-General for New South Wales, 1976

Category:

Principal judgment

Parties:

Chung Wah Wong (Plaintiff/First Cross Defendant)
Ivan Novakovic (First Defendant/Second Cross Defendant)
Susan Novakovic (Second Defendant/Cross Claimant)
Perpetual Trustees Limited (Third Defendant)

Representation:

Counsel:
J O’Sullivan (Plaintiff)
T J Morahan (Second Defendant)

Solicitors:
Clinch Long Woodbridge Lawyers (Plaintiff)
Infinity Law Group (Second Defendant)
Thomson Geer (Third Defendant – appearance excused)

File Number(s):

2021/00136452

Judgment

Mr Wong’s statement of claim

1. By a statement of claim filed on 14 May 2021 the plaintiff, Mr Chung Wah Wong, sought an order for possession of land at XXX Silverdale, New South Wales, 2752 as well as leave to issue a writ of possession and costs on an indemnity basis. No money order was sought.

2. The registered proprietors of the Silverdale property are Mr Ivan Novakovic, the first defendant, and Mrs Susan Novakovic, the second defendant. At the relevant times they held their interests in the Silverdale property as joint tenants.

3. Perpetual Corporate Trust Limited, the third defendant, is the registered first mortgagee of the Silverdale property.

4. The Silverdale property was the matrimonial home of Mr and Mrs Novakovic prior to their separation, and Mrs Novakovic continues to reside in the property with her children.

5. The plaintiff, Mr Wong, claims the order for possession of the Silverdale property and consequential orders based on a second registered mortgage signed on 17 June 2019 by Mr and Mrs Novakovic (the Second Mortgage) over the Silverdale property to secure the repayment of an amount of $395,000 together with interest. This sum was advanced by Mr Wong under a loan agreement signed by Mr Wong and Mr and Mrs Novakovic on 17 June 2019 (the Loan Agreement) and it has not been repaid in full in breach of the Loan Agreement.

6. At the hearing of this matter, it was expressly stated that the orders sought by Mr Wong in his statement of claim were only opposed by Mrs Novakovic on the basis set out in her cross claim.

Mrs Novakovic’s cross claim

7. Mrs Novakovic filed an amended first cross claim on 26 November 2021 in which Mr Wong was named as the first cross defendant and Mr Novakovic was named as the second cross defendant.

8. In the amended first cross claim, Mrs Novakovic accepted that the Loan Agreement and the Second Mortgage had been executed but contended, in effect, that these contracts were “unjust” for the purposes of Pt 2 of the Contracts Review Act 1980 (NSW) and should be set aside. She relied upon the following particulars to support the contention that the Loan Agreement and the Second Mortgage were unjust:

1. The provisions of the Loan Agreement and the Second Mortgage were not the subject of negotiation and she did not have an opportunity to alter or reject any of the provisions;

2. She was not given an opportunity to read the two documents before she signed them;

3. She was not skilled in legal terminology and, even if she read them, she would not have adequately understood them;

4. She was not given independent legal advice in relation to the two documents and was not given an opportunity to obtain such advice;

5. The provisions of the two documents were not explained, adequately or at all, to her and as a consequence she did not understand the provisions or their effect; and

6. She was pressured by Mr Novakovic, his lawyer and another person in the room prior to and at the time of signing.

9. On that basis, Mrs Novakovic claimed the following relief against Mr Wong:

1. a declaration that the Loan Agreement and the Second Mortgage are both void and unenforceable against her;

2. a declaration that Mr Wong is not entitled to possession of her interest in the Silverdale property; and

3. costs.

10. In addition, in the amended first cross claim, Mrs Novakovic also claimed an order against Mr Novakovic to the effect that if it were found that she has any liability in respect of the Loan Agreement and/or the Second Mortgage he should be required to indemnify her in respect of that liability.

Mr Wong’s defence to cross claim

11. Mr Wong filed a defence to the amended first cross claim on 3 December 2021 opposing the relief sought and alleging that Mrs Novakovic was jointly and severally liable under the Loan Agreement and the Second Mortgage and that she had signed an acknowledgement of legal advice and a statutory declaration at the time of the signing the Loan Agreement and the Second Mortgage.

Service on, and non-participation by, Mr Novakovic

12. On 7 September 2021, Campbell J made orders for substituted service of the statement of claim on Mr Novakovic. It appears that the numbering of the orders was amended the following day. His Honour’s judgment in this regard is Chung Wah Wong v Ivan Novakovic [2021] NSWSC 1130. The amended orders made on 8 September 2021 were relevantly as follows:

“(1) Pursuant to r 10.14(2) of the Civil Procedure Rules 2005 (NSW), service of the statement of claim on Mr Novakovic shall be sufficiently effected by:

(i) Service of a sealed copy of the statement of claim upon John Au-Yeung solicitor xxxxxx xxxxxxxxxxxxx by express post, together with a sealed copy of this order for substituted service; and

(ii) Service of a sealed copy of the statement of claim upon Mr Ivan Novakovic by email to xxxxxxxxxxxxxxxxx and xxxxxxxxxxxx

(2) Substituted service shall be deemed to have been effected after four days from the expiry of the date of express posting or sending of the email, whatever date is later.”

13. On 4 November 2021, Davies J struck out various paragraphs of Mrs Novakovic’s original defence and first cross claim but gave her leave to replead: Wong v Novakovic [2021] NSWSC 1381. In doing so, his Honour held at [3]:

“Orders for substituted service on the first defendant were made by Campbell J on 8 September 2021 …. Despite service having been effected on the first defendant pursuant to those orders, he has not appeared in the proceedings.”

14. In addition, the affidavit of Dianne Kanaan affirmed 7 October 2021 and the oral evidence of Mr Penhall, solicitor, all of which evidence I accept, established that the steps required by order (1) made by Campbell J on 8 September 2021 were complied with. Accordingly, by operation of r 10.14(4) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), Mr Novakovic is taken to have been personally served with the statement of claim in this matter.

15. Mr Novakovic has not appeared in these proceedings and was not present or represented when the matter was called for hearing on 17 March 2022.

16. It should be noted, however, that Mrs Novakovic was unsuccessful in obtaining an order for substituted service on Mr Novakovic in respect of her first cross claim. At the hearing, it was expressly accepted by Mrs Novakovic that Mr Novakovic had not been served with the cross claim and that no orders could be made against him as sought in her cross claim.

Position of Perpetual Corporate Trust Limited

17. At the request of the third defendant, Perpetual Corporate Trust Limited (Perpetual), and with the consent of the other active parties, Perpetual was excused from attendance unless and until it is given notice that it will be appropriate for them to be present because some issue that may affect their interest as first registered mortgagee is likely to arise. It was also noted that Perpetual was not appearing on the basis that there would not be any order for costs against it and, if any party sought such costs, Perpetual would be given notice so that it could appear to make submissions concerning such an order.

18. Mr O’Sullivan of counsel who appeared for Mr Wong further noted that his instructions were to seek an order that his client’s costs be paid as a priority given that Mr Wong had “taken the running on the possession application”, but that that was an issue about which Perpetual may wish to make submissions. It was submitted that this issue could be dealt with at a later time, if necessary, after notice was given to Perpetual.

Relevant provisions of the Contracts Review Act

19. As noted above, the only basis on which the relief claimed by Mr Wong was opposed by Mrs Novakovic was that there should be declarations that the Loan Agreement and the Second Mortgage are void and unenforceable under the Contracts Review Act and that, as a result, Mr Wong is not entitled to possession of the Silverdale property.

20. Mrs Novakovic’s claims for relief were made under Part 2 of Contracts Review Act which relevantly contains the following provisions:

“7   Principal relief

(1)  Where the Court finds a contract or a provision of a contract to have been unjust in the circumstances relating to the contract at the time it was made, the Court may, if it considers it just to do so, and for the purpose of avoiding as far as practicable an unjust consequence or result, do any one or more of the following—

(a)  it may decide to refuse to enforce any or all of the provisions of the contract,

(b)  it may make an order declaring the contract void, in whole or in part,

(c)  it may make an order varying, in whole or in part, any provision of the contract,

(d)  it may, in relation to a land instrument, make an order for or with respect to requiring the execution of an instrument that—

(i)  varies, or has the effect of varying, the provisions of the land instrument, or

(ii)  terminates or otherwise affects, or has the effect of terminating or otherwise affecting, the operation or effect of the land instrument.

(2)  Where the Court makes an order under subsection (1) (b) or (c), the declaration or variation shall have effect as from the time when the contract was made or (as to the whole or any part or parts of the contract) from some other time or times as specified in the order.

(3) The operation of this section is subject to the provisions of section 19.

8   Ancillary relief

Schedule 1 has effect with respect to the ancillary relief that may be granted by the Court in relation to an application for relief under this Act.

9   Matters to be considered by Court

(1)  In determining whether a contract or a provision of a contract is unjust in the circumstances relating to the contract at the time it was made, the Court shall have regard to the public interest and to all the circumstances of the case, including such consequences or results as those arising in the event of—

(a)  compliance with any or all of the provisions of the contract, or

(b)  non-compliance with, or contravention of, any or all of the provisions of the contract.

(2)  Without in any way affecting the generality of subsection (1), the matters to which the Court shall have regard shall, to the extent that they are relevant to the circumstances, include the following—

(a)  whether or not there was any material inequality in bargaining power between the parties to the contract,

(b)  whether or not prior to or at the time the contract was made its provisions were the subject of negotiation,

(c)  whether or not it was reasonably practicable for the party seeking relief under this Act to negotiate for the alteration of or to reject any of the provisions of the contract,

(d)  whether or not any provisions of the contract impose conditions which are unreasonably difficult to comply with or not reasonably necessary for the protection of the legitimate interests of any party to the contract,

(e)  whether or not—

(i)  any party to the contract (other than a corporation) was not reasonably able to protect his or her interests, or

(ii)  any person who represented any of the parties to the contract was not reasonably able to protect the interests of any party whom he or she represented,

because of his or her age or the state of his or her physical or mental capacity,

(f)  the relative economic circumstances, educational background and literacy of—

(i)  the parties to the contract (other than a corporation), and

(ii)  any person who represented any of the parties to the contract,

(g)  where the contract is wholly or partly in writing, the physical form of the contract, and the intelligibility of the language in which it is expressed,

(h)  whether or not and when independent legal or other expert advice was obtained by the party seeking relief under this Act,

(i)  the extent (if any) to which the provisions of the contract and their legal and practical effect were accurately explained by any person to the party seeking relief under this Act, and whether or not that party understood the provisions and their effect,

(j)  whether any undue influence, unfair pressure or unfair tactics were exerted on or used against the party seeking relief under this Act—

(i)  by any other party to the contract,

(ii)  by any person acting or appearing or purporting to act for or on behalf of any other party to the contract, or

(iii)  by any person to the knowledge (at the time the contract was made) of any other party to the contract or of any person acting or appearing or purporting to act for or on behalf of any other party to the contract,

(k)  the conduct of the parties to the proceedings in relation to similar contracts or courses of dealing to which any of them has been a party, and

(l)  the commercial or other setting, purpose and effect of the contract.

(3)  For the purposes of subsection (2), a person shall be deemed to have represented a party to a contract if the person represented the party, or assisted the party to a significant degree, in negotiations prior to or at the time the contract was made.

(4)  In determining whether a contract or a provision of a contract is unjust, the Court shall not have regard to any injustice arising from circumstances that were not reasonably foreseeable at the time the contract was made.

(5)  In determining whether it is just to grant relief in respect of a contract or a provision of a contract that is found to be unjust, the Court may have regard to the conduct of the parties to the proceedings in relation to the performance of the contract since it was made.”

Submissions

First Defendant/Cross Claimant – Mrs Novakovic

21. Mr Morahan of counsel who appeared on Mrs Novakovic’s behalf submitted that the Contracts Review Act was beneficial legislation and ought to be interpreted liberally, citing West v AGC (Advances) Ltd (1986) NSWLR 610, and relief may be granted even where the conscience of the party against whom relief is sought is not affected, relying on Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41. He submitted this means that “one does not need to examine the motives of the lender [Mr Wong] or to apply any particular community standard of morality to the transaction in question.”

22. Mr Morahan made written submissions about the operation and effect of ss 6 and 19 of the Contracts Review Act 1980 in this case.

23. It was also submitted that “[a]t the time of entering into the contract(s), Ivan was not supporting Susan and the children at all; she was relying on support from her relations” and she did not receive any benefit from the advance by Mr Wong since the money was not paid to her. There was also said to be no evidence that the transaction “saved the house”.

24. The process to be adopted in determining whether the Loan Agreement and Second Mortgage were unjust was contended to involve two steps: the first being to determine whether the contract was unjust in the circumstances in which it was made, involving a broadly based value judgment having regard to the factors referred to in s 9, and the second being whether any relief should be granted, and, if so, what.

25. The circumstances said to lead to the Loan Agreement and the Second Mortgage being “unjust” in the present case were identified as being, in essence:

1. the lack of an opportunity to read and understand or negotiate the terms of the contracts;

2. Mrs Novakovic not being well skilled in legal terminology and that, even if she had been given the opportunity to read the documents, she would not have been able to understand adequately the meaning of the terms and conditions;

3. a lack of independent legal advice;

4. the agreements and their legal and practical effect were not accurately, or at all, explained to her, and she did not understand the effect of the provisions; and

5. the application of unfair pressure prior to and at the time of signing by Ivan, his lawyer and the pressure brought about by the physical atmosphere and circumstances of the meeting on 17 June 2019.

26. As to the particular circumstances of the signing of the documentation on 17 June 2019, Mrs Novakovic’s submissions were to the following effect:

1. She was not represented by a lawyer and Mr Au-Yeung did not act for her, since there was no fee agreement between them, he did not charge her for his services, and she had only met him previously when he had assisted Ivan with an earlier construction case.

2. In any event, Mr Au-Yeung was said not to be independent and to have been conflicted because Mr Wong had previously engaged him as his solicitor and he had a professional relationship with Mr Penhall under which Mr Au-Yeung would work from Mr Penhall’s premises and Mr Penhall had him prepare the documentation without being permitted to amend it in favour of Mr and Mrs Novakovic.

1. Her evidence established that she was psychologically intimidated by Ivan because of “incipient threats of violence” if she did not sign, that Ivan had carried out acts of violence upon her before, and that she lacked any understanding of, or practical ability to negotiate or obtain information in relation to, the documents to be signed.

2. The documentation was signed in an atmosphere of urgency and that the evidence of Mr Penhall and Mr Wong supports this contention.

3. She was subject to a “situational disability” in the circumstances.

27. It was further submitted that the failure by Mr Wong to call Mr Au-Yeung should lead to a Jones v Dunkel inference being drawn that his evidence would not have assisted Mr Wong. Further to this, Mr Morahan submitted that although there was a document signed by Susan saying that the documentation had been explained to her, since she did not read the document or have the opportunity to do so, “the force of this document falls away”.

28. In summary, it was submitted that there were two aspects of unjustness which called for the Loan Agreement and the Second Mortgage as between Mr Wong and her to be set aside:

1. the substantive unjustness of Susan being required by her “estranged and violent husband” to sign documents that he “wrongly told her were going to ‘save the house’, when all they were doing was propping up his business, and the transaction did not ‘save the house’”; and

2. the situational unjustness where Susan felt intimidated, threatened and uncomfortable and was not represented or informed (properly or at all) by her lawyer and was not given the opportunity to understand, negotiate or change details of the transaction.

Plaintiff/First Cross Defendant – Mr Wong

29. Mr O’Sullivan on behalf of Mr Wong noted that Mrs Novakovic did not impugn the Loan Agreement and the Second Mortgage as unjust in themselves, either in the way they operated or the circumstances in which they were made. It was then submitted that, contrary to her submission, Susan was wholly financially dependent on Ivan, and she did receive a benefit from entering into the agreements, namely postponing the inevitable financial demise of her husband which allowed her to continue to reside in the family home for almost three years which would not have occurred if the transaction had not been entered into.

30. As to unjustness, it was submitted that any unjustness arising out of Susan’s failure to read or otherwise inform herself about the documentation she signed arose out of “her own wilful blindness”. The only pressure she felt to enter into the transaction was said to result from her own financial circumstances, being wholly financially dependent on a volatile husband.

31. It was observed that Mrs Novakovic did not suggest that Mr Wong unconscientiously took advantage of her situation to extract an onerous bargain or was even aware of her situation.

32. Mr Wong’s submissions then addressed the particulars relied upon by Mrs Novakovic in her pleading as establishing unjustness.

33. As to the allegation that Susan had no opportunity to negotiate or reject any provision of the Loan Agreement or the Second Mortgage, it was submitted that there was no evidence of any desire or request for any alteration or rejection and it was not put to Mr Wong that he would have refused to consider any request had one been made. It was further submitted that there was no fraud or misrepresentation by Mr Wong that deprived Mrs Novakovic of the opportunity to negotiate and there was nothing to suggest that she did not wish to borrow the funds as proposed.

34. As to the allegation that Mrs Novakovic was not given the prior opportunity to read the Loan Agreement or the Second Mortgage, Mr O’Sullivan noted her qualifications and experience as well as the fact that the urgency arose out of Ivan’s financial needs and circumstances and her dependence on him. It was submitted that Mr Wong did not deprive her of the opportunity to read or to take legal advice or time to consider. Any lack of comprehension was said to be the result of her not reading the documentation. In that regard, Mr O’Sullivan referred to the principles in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52. Further, it was submitted that given the headings of the documents, it would have been almost impossible for Susan not to have seen these words when she was signing and thus her evidence that she did not know what she was signing was inherently implausible and should be rejected.

35. As to the allegation that Mrs Novakovic was not skilled in legal terminology and would not have been able adequately to understand the documentation even if she had read it, it was submitted that her previous experiences of mortgages to St George Bank and Perpetual gave her an understanding that if loan repayments were not made she would lose the house. Not being skilled in legal terminology was said not to give rise to any injustice within the meaning of the Contracts Review Act, otherwise contracts would only ever be binding on lawyers. It was contended that Susan plainly understood the general nature and consequences of entering into the transaction.

36. As to the allegation that Mrs Novakovic was not given, or given the opportunity to obtain, independent legal advice, attention was drawn to her understanding that Mr Au-Yeung was Ivan’s solicitor and to the documents headed “Acknowledgement of legal advice” and “Declaration by borrowers”. It was submitted that her denial of receiving legal advice was implausible in light of those documents. In addition, it was contended that Susan was left with Ivan and Mr Au-Yeung in a separate room in Mr Penhall’s house and Mr Wong and Mr Penhall may have gone into that room from time to time but mostly remained in the front office so that she had the opportunity to obtain for her to obtain independent legal advice. Mrs Novakovic’s contacting Mr Au-Yeung to obtain copies of the documentation, after she received notice of a caveat in the mail was said to indicate that she understood that Mr Au-Yeung had provided her with legal advice concerning those documents. Next, it was contended that absence of legal or other advice was not determinative by itself and was only one factor to be taken into account, citing Canty v PaperlinX Australia Pty Ltd [2014] NSWCA 309. Finally, it was submitted, in effect, that no Jones v Dunkel inference should be drawn in relation to Mr Au-Yeung not being called as a witness in the circumstances.

37. As to the allegation that the provisions of the Loan Agreement and the Second Mortgage and their practical effect were not explained to Mrs Novakovic, accurately or at all, and as a result she did not understand, it was submitted that her evidence that she did not know she had borrowed money until she received notice of the caveat in the mail was highly implausible.

38. As to the allegation that unfair pressure was put on Mrs Novakovic prior to and at the time of signing by Ivan, Mr Au-Yeung and another person in the room at the time, it was contended that there was no evidence of “pressure” apart from their mere presence and “popping their head around the door” and it was noted that Susan’s evidence was that neither Mr Wong, Mr Penhall or Mr Au-Yeung had threatened her. It was submitted that Susan had been to dinners with Mr Wong before and that there was no objective evidence that she was intimidated by him. Mrs Novakovic’s explanation in re-examination of feeling intimidated psychologically was also referred to but it was noted that there was no suggestion that Mr Wong, Mr Penhall or Mr Au-Yeung was aware of this or that Mr Wong unconsciously exploited the situation to extract an “unjust” contract. It was submitted that the pressure was largely financial, as a result of the Ivan’s difficulties with his company.

39. Next, submissions were made concerning Mrs Novakovic’s credit and attention was drawn, among other things, to discrepancies between various accounts given by her of various matters such as her separation from Ivan, her lack of memory of showing her licence to Mr Au-Yeung, and her having signed various declarations and given other evidence which was said to indicate that she was prepared to do whatever was expedient rather than to take care to be truthful.

40. Finally, it was submitted that even if the facts relied upon by Mrs Novakovic were proved, Mr Wong would still be entitled to relief against Mr Novakovic and thus, the Silverdale property would be sold and the amounts due to Mr Wong (and presumably Perpetual first) would be paid out of the proceeds of sale and, any remain funds could be applied towards satisfaction of any order for indemnity that Mrs Novakovic might be able to obtain against Mr Novakovic.

The factual matters in dispute

41. In their joint statement of legal and factual matters in dispute dated 14 March 2022, the parties identified the following as the facts in dispute:

1. Whether Mrs Novakovic had the opportunity to negotiate the terms of the Loan Agreement and Second Mortgage before signing them;

2. Whether Mrs Novakovic was given the opportunity to read the Loan Agreement and Second Mortgage before signing them;

3. Whether, if Mrs Novakovic had been given the opportunity to read the Loan Agreement and the Second Mortgage before signing them, she would have been able to understand adequately their terms and conditions;

4. Whether Mrs Novakovic was given independent legal advice with respect to and before signing the Loan Agreement and the Second Mortgage;

5. Whether the provisions of the Loan Agreement and the Second Mortgage and their legal and practical effect were explained to Mrs Novakovic accurately, or at all, and whether she understood those provisions; and

6. Whether unfair pressure was put on Mrs Novakovic before and at the time of signing the Loan Agreement and the Second Mortgage by Mr Novakovic, Mr Au-Yeung and another person in the room at the time.

42. While these factual issues focus on what occurred when the documentation was being signed on 17 June 2019, they also touch upon circumstances prior to that date and the relationships between the various persons involved as well as some events occurring after 17 June 2019. Accordingly, it is necessary to make findings in relation to the signing of the documents on 17 June 2019 as well as what occurred before and after that event.

The witnesses

43. The witnesses who gave evidence in relation to the substantive issues in this matter were:

1. Mr Wong, the plaintiff;

2. Mr Penhall, who was and is Mr Wong’s solicitor; and

3. Mrs Novakovic, the second defendant.

44. At this point, it can also be noted that a substantial part of the factual background to this matter, what occurred when the documentation was signed on 17 June 2019 and what occurred after that date was not in dispute. The areas of dispute focused principally, but not exclusively, on what occurred in relation to the signing by Mrs Novakovic of the Loan Agreement, the Second Mortgage and other documentation on 17 June 2019.

45. Having observed the witnesses giving evidence and taking into account the nature and content of their answers and the way the answers were given, it appeared to me that each of Mr Wong and Mr Penhall was generally attempting to answer the questions they were asked honestly by giving their genuine recollection of relevant events or circumstances. I was also of the view that, although honest, each of those witnesses’ evidence may not have been complete or entirely accurate because of the passage of time and the many other factors which have been widely accepted as potentially affecting the reliability of recollection and memory. Furthermore, in Mr Wong’s case, I also made allowance for the fact that English was not his native language.

46. As to Mrs Novakovic, I was of the view that she was also generally an honest witness but that her reliability was affected by the understandable fear of losing her house and this resulted in a tendency, especially but not only during oral evidence, to downplay or deny her awareness of matters relating to the financial circumstances of Mr Novakovic and his company prior to 17 June 2019 and her awareness of the nature of the transactions which were the subject of the documentation signed on that date. One example of this downplaying or denial of awareness in her oral evidence is that in her affidavit of 4 August 2021, Mrs Novakovic stated at par 11:

“In or about 2019, Ivan’s company was in trouble. He had a tax liability of about $200,000 and a liquidator had been appointed. .... All I was aware of was that there was an Australian Tax Office liability and there were Court proceedings on foot.”;

but in her oral evidence, Mrs Novakovic gave evidence which was somewhat evasive, or much vaguer than, or inconsistent with, par 11, when answering questions as follows:

“Q. Before 17 June 2019, you knew that Custom Built Projects was in trouble financially; didn't you?

A. All the years Ivan was in trouble with stuff.

Q. You knew that he or Custom Built Projects had a big debt to the Tax Office; correct?

A. When I would ask Ivan for money, it was always late and short and I would always say, "Are you okay? What is going on?" He would sometimes throw me a bit of information here and there but I didn't personally know that there was a huge debt what was going on exactly.

…

Q. But before 17 June 2019, Ivan had told you that there were Court proceedings against Custom Built Projects; hadn't he?

A. No he said he could lose the company.”

47. In this particular case, I concluded that Mrs Novakovic’s evidence in her affidavit was more inherently credible, more consistent with the documentary and other evidence and more likely to be reliable than her oral evidence in cross examination which was evasive, or vaguer than or inconsistent with her earlier evidence.

48. Where I had no reason to doubt the evidence of each witness and where evidence was inherently credible and consistent with other evidence, including the documentary evidence to the extent it was relevant, I generally accepted each witness’s evidence. In the particular case of Mrs Novakovic’s evidence, where it related to her awareness of financial circumstances and the nature of the transactions involved in this matter, I generally proceeded on the basis that her oral evidence was not as reliable as the evidence in her affidavit but I also maintained misgivings concerning the reliability of her affidavit evidence and my findings, as set out below in those regards, were based on inferences from the evidence as a whole including, where relevant, Mrs Novakovic’s business training, the contents of relevant documents and her affidavit evidence as well as the evidence of the other witnesses. Otherwise, where I did not accept a witness’s evidence, this is addressed at the relevant point when dealing with the facts in a generally chronological sequence.

49. On those bases, I made the findings set out in the paragraphs which follow.

The facts

General background

50. In 1981, Ivan Novakovic was born in Serbia and Susan Novakovic was born in Australia.

51. In 2002, Mrs Novakovic graduated from university with a Bachelor of Business degree. She also has certificates in public relations, marketing and advertising. She worked as a personal assistant to a financial planner before becoming a full time homemaker. Susan has no difficulty with reading or understanding English.

52. Mr and Mrs Novakovic married and they have four children born between 2006 and 2011.

53. After their marriage, Mr and Mrs Novakovic bought a house at West Hoxton, which was in both their names and over which St George Bank had a mortgage. Mrs Novakovic understood that, if they did not meet the loan repayments under that mortgage, they “would lose the house”.

54. At some point, Mr and Mrs Novakovic sold the West Hoxton house and bought the Silverdale property over which Perpetual had and has a registered first mortgage. Mrs Novakovic’s understanding in relation to that mortgage was that if she and Ivan did not make the required repayments to Perpetual, Perpetual could take possession of the Silverdale property and then sell the property, pay itself any amount owing to Perpetual and whatever was left over would go to Mr and Mrs Novakovic. She confirmed that this was also her understanding in respect of the earlier mortgage to St George Bank over the West Hoxton house.

55. From February 2009, Ivan was a builder who held a contractor licence under the Home Building Act 1989 (NSW).

56. In about 2014 and subsequently, Mr Wong was, inter alia, a small development developer. At about this time, he started retaining Mr Penhall of Penhall & Co, solicitors, whose office was in a house in Burwood, to act for him in relation to conveying properties.

57. Also in about 2014, Mr Wong was introduced by a friend to a solicitor, Mr John Au-Yeung of JAY Legal. Subsequently, Mr Wong retained Mr Au-Yeung to act for him in a personal matter relating to the sale and purchase of a house. At this time, Mr Au-Yeung worked in an office in the city. JAY Legal also had an office at Epping.

58. Mr Penhall and Mr Au-Yeung were known to one another and, on occasion, Mr Au-Yeung provided “consultancy services” to Mr Penhall’s firm “as a sub-contractor” and from time to time in so doing worked from the front room in Mr Penhall’s house, which was regularly used by Mr Penhall and his bookkeeper as an office. The lounge room in Mr Penhall’s house served as a waiting room. On occasion, Mr Penhall also allowed Mr Au-Yeung to see his private clients in Mr Penhall’s front room office.

59. In February 2014, Ivan formed a company, Custom Built Projects Pty Ltd (CBP), of which he was the sole shareholder and director. While Susan said she sent emails and did other little things in relation to CBP when Ivan asked her to, she denied doing the bookkeeping or accounts for the company.

60. From 29 July 2014 to 28 July 2015, CBP held a contractor licence under the Home Building Act.

61. On 9 February 2015, Ivan’s personal contractor licence expired and was not renewed at that time.

62. On 12 January 2016, a final Apprehended Violence Order (AVO) was made with Susan named as the protected person and Ivan as the defendant. The AVO was for a term of 12 months and contained standard orders prohibiting assault, intimidation and stalking together with additional orders prohibiting any approach within 12 hours of consuming drugs or alcohol and damaging or destroying property.

63. On 25 July 2016, Ivan’s contractor licence was renewed and it continued until, at least, 14 January 2021.

64. In 2017, Mr Wong obtained legal advice from Mr Au-Yeung in relation to withdrawing from a contract to purchase an apartment off the plan which he had entered into in about 2015 or 2016.

65. In about 2017 or 2018, Mrs Novakovic met Mr Wong, whom she knew as Benny, when Ivan was doing building work for Mr Wong at Burwood. He visited their family home at Silverdale and Susan had not felt intimidated at that time or when Susan and Ivan had been out to dinner with Mr Wong.

66. From around 2017 or 2018 and perhaps earlier, when Susan asked her husband for money, it was “always late and short”.

67. In July 2018, there was an application to wind up CBP, but that application was dismissed in October that year. There was no further information concerning what gave rise to, or occurred in relation to, this application.

68. In 2018, Mr Wong recommended Mr Au-Yeung to Mr Novakovic as a solicitor who could assist Ivan with what Mr Wong understood was a legal problem that Ivan was having with his company, CBP. Mrs Novakovic had spoken on the telephone to Mr Au-Yeung when he had been assisting Ivan with a construction case but had not met him in person before 17 June 2019.

69. By about late 2018 or early 2019, Ivan was carrying out building work at Vaucluse for Mr Wong but did not have a driver’s licence and rented an apartment in that suburb in which he lived.

50. While there was no dispute that at some time Mr and Mrs Novakovic separated and Ivan moved out of the Silverdale property, there was a dispute as to when this happened. In her affidavit of 4 August 2021, Mrs Novakovic stated that this occurred in late 2018 or early 2019 and at that time Mr Novakovic moved out of the matrimonial property and rented an apartment in Vaucluse. However, in the application which accompanied the provisional Apprehended Domestic Violence Order (ADVO) made on 1 January 2021 in relation to an incident that had occurred earlier that day, it was recorded based upon information provided by Mrs Novakovic as follows:

“Duration of relationship: 22 years married, 1 year separated

…

Any Family Law court or Parenting order? If yes, brief details of order: Nil

…

Most recent Incident Details …:

…

The defendant [Mr Novakovic] and PINOP [Mrs Novakovic] were previously married for twenty-two years until early 2020 when they separated. … Due to the separation, the defendant moved in with a friend in the Campbelltown area.

… [there followed a detailed description of what occurred on 1 January 2020]”.

71. When cross examined about these different versions of her separation, Mrs Novakovic’s evidence included:

“Q. Does that mean seeing that now and my drawing the date of the AVO to your attention as 1 January 2021, do you remember now that you told the police that you had been separated since about January 2020; in other words one year?

A. That can be right, yeah. At that time I would have just said one year one and a half two he hasn't lived in the house for years so.

Q. If that be can be right it can also be right that your affidavit at paragraph 5 says that you separated from Ivan in late 2018 or early 2019, that could be wrong; could it not?

A. No.

Q. Let me ask you one more question about this. It is the case that as at June 2019 although Ivan was living in Vaucluse, you and he were not separated as husband and wife? That is correct; isn't it?

A. No we were separated. When he would come home to see the kids, he was not allowed in my bedroom. He wasn't allowed near me. I didn't have to I was not a wife.”

72. According to Mrs Novakovic’s affidavit, Ivan booked a holiday with the children in Queensland for two weeks in December 2019 and Susan went on the holiday because she did not want him driving the children all the way to Queensland. She suggested that they try to make it work and have a good time for the children but, one day during the holiday, Ivan went away for part of a day and would not tell her where he had gone and they did not speak for the rest of the holiday. Moreover, in her affidavit, Mrs Novakovic stated that she decided to consult a lawyer as she wanted to divorce Ivan after she received notice of a caveat in or about early to mid-2020.

73. Given that evidence, what is recorded in the ADVO application and my earlier comments as to my assessment of Mrs Novakovic’s reliability, I find, on the balance of probabilities that Mr and Mrs Novakovic did not “separate”, in the sense in which that term is used in s 48 of the Family Law Act 1975 (Cth), until about early 2020, when Ivan moved out of the Silverdale property and moved in with friends in the Campbelltown area. I also find that, prior to early 2020 and in late 2018 and early 2019, while he did not have a drivers licence and was working in Vaucluse, he lived in an apartment in that suburb not in the Silverdale property, but he would still go back to Silverdale to see his children and Mrs Novakovic would also take the children to visit him and they went on holidays together.

74. Furthermore, during late 2018 and the first half of 2019, Mrs Novakovic was not employed and she and the children depended on Ivan providing financial support including paying the mortgage repayments and household and family expenses, although he was not always entirely reliable in this regard. Susan did receive financial help from her family members from time to time.

Circumstances leading to the signing of the documents on 17 June 2019

75. In May 2019, another application to wind up CBP was made.

76. On 5 June 2019, an order that CBP be wound up was made and a liquidator was appointed by the court.

77. After 5 June 2019, Mrs Novakovic knew that CBP was “in trouble” and there was a tax liability of about $200,000 and a liquidator had been appointed. Susan was worried for Ivan about CBP going into liquidation because “that was his job” and if he lost his job he would not be able to earn income at least for some time. She was also worried about his reaction if that happened and about his substance abuse problems. At this time, Mrs Novakovic was not in employment and Ivan was paying the mortgage repayments and generally meeting household and family expenses.

78. Before 17 June 2019, Mr Novakovic spoke to Mr Wong as a result of which Mr Wong understood that Ivan had had a conversation with his wife and she had agreed to give a second mortgage over the Silverdale property and that Mrs Novakovic had been told that they would lose the house if Mr Novakovic lost his job as a builder and could not pay the mortgage. Mrs Novakovic denied that she had a conversation with her husband in those terms and I do not make a finding that such a conversation in those terms occurred. Nonetheless, in light of her evidence as to what she knew and was concerned about in June 2019 and the evidence as a whole, I find that at some time shortly before 17 June 2019, Mrs Novakovic was aware in general terms of the problems faced by her husband and CBP and appreciated that, if nothing was done to address the problems, CBP would be “closed down”, and if that occurred there was a likelihood, or at least a serious risk, of their losing the Silverdale property and being homeless.

79. Mr Wong also understood, from what Mr Novakovic said to him before 17 June 2019, that Mr Novakovic needed $395,000 urgently to “reverse the liquidation” of CBP.

80. As a result of Mr Wong’s understanding of the situation, he instructed Mr Penhall to prepare loan and security documentation in relation to the lending of $395,000 to Mr and Mrs Novakovic primarily for the purpose of making payments so as to cause the winding up of CBP to be terminated.

81. Mrs Novakovic’s affidavit at par 12 recorded that she had a conversation with Ivan “[o]n or about 17 June 2019”. Given the contents of the conversation and what occurred on 17 June, however, the conversation can only have been on or before 17 June 2019. In that conversation according to that evidence of Mrs Novakovic, Ivan referred to the situation concerning CBP being closed down and his losing his job and the conversation continued as follows:

“Ivan: ‘… They will take the house if we can’t save it. I need you to come and sign an agreement that will save the house. We are going to get some money to save the house.’

Susan: ‘What’s going on, how are you going to do this?

Ivan: Just come down to my lawyer’s office, don’t worry, just come and sign the fucking documents. I’ll send you the address.”

82. Given my concerns as to the reliability of Mrs Novakovic’s evidence, I am not prepared to find that a conversation took place in the precise terms recorded in her affidavit, but I do accept that there was a conversation which caused her to be shocked and extremely concerned, as stated in par 13 of the affidavit. In particular, having regard to all the evidence as a whole including what Mrs Novakovic understood after 5 June 2019 in relation to the liquidation of CBP and what occurred on 17 June 2019, I find that:

1. a conversation took place between Mr and Mrs Novakovic shortly before, or on, 17 June 2019 in which Ivan in effect demanded that Susan sign documentation in relation to an agreement to obtain funds to be used in relation to the liquidation of CBP with a view to ensuring that he continued to be able to work and make the mortgage repayments in relation to the Silverdale property so that the property would not be sold and they would not be left homeless; and

2. Susan understood that the funds would be used, at least in part, to repay CBP’s tax liability and related expenses in order to take the company out of liquidation; and

3. Susan was scared of Ivan and scared about losing the Silverdale property and becoming homeless if the funds were not obtained.

83. At some time shortly after that conversation, Ivan provided Susan with the address where the documentation was to be signed. Mrs Novakovic voluntarily drove to the address she had been given which was the house in Burwood from which Mr Penhall conducted his legal practice.

84. Prior to 17 June 2019:

1. Mr Penhall had not acted for CBP, Mr Novakovic or Mrs Novakovic;

2. Mr Wong had not spoken to Mrs Novakovic about the proposed transaction; but

3. Mr Au-Yeung had acted for Mr Wong as well as CBP and Mr Novakovic.

The signing of the documents on 17 June 2019

85. After Susan arrived in her car at the Mr Penhall’s house in Burwood, Ivan met her outside and they went in together. They came into the front room of the house, and Mr Wong greeted Mr and Mrs Novakovic. It is unclear whether Mr Penhall also greeted them at this point or later in the lounge room. Mr Au-Yeung was also present.

86. Susan and Ivan were shown into the lounge room, which was separated by a hallway from the front room which was used by Mr Penhall as an office. Mr Wong left the lounge room and went back to the front room with Mr Penhall.

87. At some point, Mr Au-Yeung joined Susan and Ivan in the lounge room and introduced himself to Mrs Novakovic who recognised him as the lawyer who had assisted Ivan in the past “about a construction case” and to whom she had previously spoken on the telephone. Mr Au-Yeung had with him the documentation that was to be signed.

88. Mr Au-Yeung put a pile of documents in front of Mr and Mrs Novakovic. Her evidence in her affidavit was that, at this point:

“[Mr Au-Yeung] said words to the following substance and effect, ‘This is a document between you and Benny [Mr Wong]. Sign where the sticky notes are.’ I remember looking at Ivan and said to him words to the following substance and effect:

‘What is this?’

Ivan said to me: ‘Don’t worry, just sign.’

Benny then also said: ‘Don’t worry, everything is fine.’”

89. Mrs Novakovic also said in her affidavit:

“Prior to signing the agreement, no one explained the agreement to me nor was I given the opportunity to read it or ask questions. I was told to just sign it. Prior to entering that room, I had never seen that document. I had never been asked questions nor had it been e-mailed it to me for approval.

Prior to that meeting, I had not had any conference with [Mr Au-Yeung] or [Penhall], nor had we been in communication regarding preparation of the loan agreement. ”

90. I accept that Susan had not seen the documentation before attending Mr Penhall’s house, that it was not emailed to her for approval prior to signing and that she was not asked questions about it. Nonetheless, I find that a quick glance at the bolded, larger font headings on the documentation signed at that time would have indicated to a person with Mrs Novakovic’s qualifications and experience with previous mortgages that the documents she was being signed included a “Loan Agreement”, a “Mortgage”, an “Acknowledgement of Legal Advice by Proposed Borrowers”, a “Declaration of purposes for which credit is provided”, and “Authority to Complete Blanks”, a “Statutory Declaration” and a “Declaration by borrowers”. While Mrs Novakovic may not have read the documents, I do not accept that she did not have an opportunity to do so or an opportunity to ask questions. Nor do I accept that she did not understand that they included a loan agreement, a mortgage and related documentation, given the clearly visible headings on the documents that she signed and initialled.

91. In her affidavit, Mrs Novakovic said that “[p]rior to signing the agreement, no one explained the agreement to me…. I was told to just sign it”. Against that, there was the “Acknowledgement of Legal Advice by Proposed Borrowers” and a “Declaration by Borrowers” both of which were signed by Mrs Novakovic and the latter of which was declared and witnessed under the relevant provisions of the Oaths Act 1900 (NSW), on 17 June 2019. Both of those documents stated, in effect, that Mr and Mrs Novakovic had received independent legal advice regarding the loan and security documents involved in this transaction and after receiving that advice freely and voluntarily signed the relevant documents. Even if it were accepted that Mrs Novakovic did not read either of these documents before she signed them, it would not follow, as her counsel submitted, that “the force of this document falls away”. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, [2004] HCA 52 (Toll) at [45] and [47] Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said:

“45. It should not be overlooked that to sign a document known and intended to affect legal relations is an act which itself ordinarily conveys a representation to a reasonable reader of the document. The representation is that the person who signs either has read and approved the contents of the document or is willing to take the chance of being bound by those contents, as Latham CJ put it, whatever they might be. …

…

47. The importance which, for a very long time, the common law has assigned to the act of signing is not limited to contractual documents. Wilton v Farnworth was not a contract case. … where a man signs a document knowing that it is a legal document relating to an interest in property, he is in general bound by the act of signature. Legal instruments of various kinds take their efficacy from signature or execution. Such instruments are often signed by people who have not read and understood all their terms, but who are nevertheless committed to those terms by the act of signature or execution. It is that commitment which enables third parties to assume the legal efficacy of the instrument. To undermine that assumption would cause serious mischief.” (footnotes omitted)

92. These principles do not, of course, exclude the possible application of the Contracts Review Act, depending on the circumstances, in relation to the Loan Agreement and the Second Mortgage. The question of whether relief should be granted under that Act will be considered below. Nonetheless, even if it is accepted that Mrs Novakovic did not read the “Acknowledgement of Legal Advice by Proposed Borrowers” and the “Declaration by Borrowers” before she signed them, that fact alone does not mean that the documents should be taken to have no force or significance and cannot be relied upon when considering the question of whether the Loan Agreement and the Second Mortgage were “unjust” for the purposes of the Contracts Review Act.

93. In addition, the document headed “Acknowledgement of Legal Advice by Proposed Borrowers” was short, being only one and a half pages, and contained, inter alia, a summary of the legal advice given in relation to the transaction as follows:

“(a) That by signing the Security Document, we will be jointly and severally liable for payments of the interest and repayment of the amount of the debt at the due date in accordance with the Loan Agreement;

(b) That if we fail to make any payment on time, the Mortgagee can charge its cost of rectifying that failure;

(c) That if I fail to comply with any of the terms and conditions of the Security Documents, including the obligations to pay principal and interest:

(i) The Mortgagee can sue us personally; and

(ii) The Mortgagee may take possession of our Silverdale property;

(iii) After notice, sell our Silverdale property to recover the amount owing together and other costs including solicitor’s costs, the costs of selling Silverdale property and the costs of maintaining Silverdale property;

(iv) If the proceeds of the sale of our Silverdale property are insufficient to satisfy the debt to the Mortgagee, then the Mortgagee can sue me for the deficit; and

(d) That the additional obligations, rights and remedies set out in the Security Documents apply if the National Credit Code and Schedule 1 of the National Consumer Credit Protection Act 2009 (Cth) apply; and

(e) And that by making a Statutory Declaration verifying the giving of the advice, we are making a statement having the force of an Oath which can be relied upon by the Mortgagee.”

94. The Acknowledgement document also noted that the solicitor did not profess any qualification to give financial, as distinct from, legal advice and questions in that regard should be addressed to an accountant or other financial counsellor.

95. Mr Au-Yeung did not give evidence in these proceedings. Mr Morahan submitted that, in these circumstances, a Jones v Dunkel inference should be drawn that Mr Au-Yeung’s evidence would not have assisted Mr Wong’s case. Before the principle in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 9 applies, there are three conditions which must be satisfied: Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 at [263]-[264] (Heydon J); Payne v Parker [1976] 1 NSWLR 191 (Payne) at 201-2 (Glass JA). The three conditions are, in the circumstances of this case:

1. Mr Au-Yeung would be expected to be called by Mr Wong rather than Mrs Novakovic;

2. Mr Au-Yeung’s evidence would elucidate the particular matters of whether Mrs Novakovic was given independent legal advice or read the documents before signing; and

3. Mr Au-Yeung 's absence was unexplained.

96. As to the first condition, in Payne at 201-2 the following explanation was given by Glass JA (although dissenting as to the application of the principles to the facts in that case, his judgment has been widely recognised as stating correct legal principles: Manly Council v Byrne [2004] NSWCA 123 at [53] (Campbell J, Beazley JA and Pearlman AJA agreeing)):

“”The first condition [the expectation that the missing witness would be called by one party rather than the other] is also described as existing where it would be natural for one party to produce the witness: Wigmore, par 286, or the witness would be expected to be available to one party rather than the other: O’Donnell v Reichard [1975] VR 916, at p. 921, or where the circumstances excuse one party from calling the witness, but require the other party to call him: ibid [1975] VR 916, at p. 920, or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him: ibid [1975] VR 916, at p. 920, Regina v Burdett (1820) 4 Barn & Ald 95; 106 ER 873, or where the witness’ knowledge may be regarded as the knowledge of one party rather than the other: Earle v Castlemaine District Community Hospital [1974] VR 722, at p. 733, or where his absence should be regarded as adverse to the case of one party rather than the other: ibid [1974] VR 722, at p. 734. It has been observed that the higher the missing witness stands in the confidence of one party, the more reason there will be for thinking that his knowledge is available to that party rather than to his adversary: ibid [1974] VR 722, at p. 728. If the witness is equally available to both parties, for example, a police officer, the condition, generally speaking, stands unsatisfied. There is, however, some judicial opinion that this is not necessarily so: ibid [1974] VR 722, at p. 728. Evidence capable of satisfying this condition has been held to exist in relation to a party’s foreman: Cafe v Australian Portland Cement Pty Ltd (1965) 83 WN (Pt 1) (NSW) 280; his safety officer: Earle v Castlemaine District Community Hospital [1974] VR 722; his accountant: Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348; his treating doctor: O’Donnell v Reichard [1975] BR 916, at p. 921.”

97. In the circumstances of the present case, I do not accept that it would be natural for Mr Wong to call Mr Au-Yeung. Mr Au-Yeung was not acting for Mr Wong. Mr Au-Yeung’s knowledge was not the knowledge of, or available to, Mr Wong. Indeed, there does not appear to be a proper basis to conclude that Mr Au-Yeung’s absence should be regarded as adverse to Mr Wong’s case, which was supported, in any event, by the Acknowledgement document and the Declaration by Borrowers. If Mr Au-Yeung had been called and gave evidence that he did give the advice summarised in the Acknowledgement document, it would have been adverse to Mrs Novakovic’s case not Mr Wong’s. In these circumstances, I do not accept that Mr Au-Yeung would have been expected to be called by Mr Wong rather than Mrs Novakovic and, thus, the first condition has not been satisfied. On this basis, I decline to draw any Jones v Dunkel inference as sought in this case.

97. In these circumstances and in light of the contents of the Acknowledgement document and the Declaration by Borrowers, and the likelihood that Mrs Novakovic’s recollection of the events of 17 June 2019 has been affected by the stress and anxiety she was suffering at that time, and the realisation at the time of preparing her affidavit and giving oral evidence that there was a real prospect of her losing her house, I am satisfied on the balance of probabilities that Mr Au-Yeung gave oral, independent legal advice to Mrs Novakovic to the effect of the paragraphs of the Acknowledgement document which have been quoted above, as well as providing the summary in writing. Further, even if I am wrong and Mr Au-Yeung did not orally explain any legal advice to Mrs Novakovic, it is beyond dispute that a summary of it was given to her in writing, which she had the opportunity and capacity to read and understand if she took the short time required to do so. Furthermore, the summary of advice concerning the consequences of entering into the transaction with Mr Wong was substantially the same as Mrs Novakovic’s understanding of the nature of the two previous loan agreements and mortgages she had entered into with St George Bank and Perpetual.

98. Mrs Novakovic said that Mr Au-Yeung, Mr Penhall and Mr Wong were all present when she and Ivan signed the documentation. She also said she felt pressured to sign, embarrassed and insecure “being surrounded by [her] former husband …, two intimidating lawyers whom [she] had never met before and [Mr Wong]”. In this regard, I accept Mr Wong’s evidence that he and Mr Penhall “largely remained in his front office” to give Mr and Mrs Novakovic privacy with Mr Au-Yeung while signing the documentation. I also accept Mr Wong’s and Mr Penhall’s evidence to the effect that they may have walked into the lounge room once or twice to see how the signing was progressing. In light of this evidence and the other evidence referred to, while there may have been four men, Ivan, Mr Au-Yeung, Mr Wong and Mr Penhall, in or near the lounge room at some point while Mrs Novakovic was signing the documentation, I do not accept her evidence that “[d]uring this whole time, no one spoke a word to me. I was sitting in complete silence. I was feeling so uncomfortable surrounded by 4 men and not knowing what was going on”, or that she was subject to intimidation by Mr Wong, Mr Penhall or Mr Au-Yeung when all the documentation was signed. Mrs Novakovic was clear in her evidence, and I accept, that none of those men threatened her on 17 June 2019. I also find that Mrs Novakovic was anxious and scared at this time about the winding up of CBP and the prospect of losing her home and she felt intimidated by Ivan because of his history of domestic violence towards her and his volatility as a result or alcohol and drug abuse. It was not suggested, however, that Mr Wong, Mr Penhall or Mr Au-Yeung was aware of any intimidation felt by Mrs Novakovic and I do not find that any of them was aware of that matter.

99. Shortly after signing the documentation, Mrs Novakovic left without there being any conversation of substance. She did not receive any copies of the documentation that she signed at that time. Nor was she invoiced for any legal advice or the preparation of any documentation. Fees in that regard were paid out of the sum advanced by Mr Wong under the Loan Agreement.

100. Mr Wong signed the documents where relevant later that day.

Disbursement of the loan funds and repayments after signing of the documents

102. There was no dispute of substance between the parties that Mr Wong paid a total of approximately $395,000 under the Loan Agreement as follows:

1. $350,000 transferred to Mr Penhall’s trust account from which was paid out: $193,527.68 to the Deputy Commissioner of Taxation; Liquidators’ fees of $5,500.00; Legal fees to JAY Legal of $15,000; Counsel’s fees of $3,575.00 (there was some uncertainty on Mr Wong’s part as to what this was for, but I infer this was incurred in relation to obtaining orders terminating the winding up); Mr Penhall’s fees totalling $12,275.56; and accountancy fees of $6,490. The remaining amount of $113,631.75 was paid into JAY Legal’s trust account. Although it was not made clear in the affidavit or oral evidence, I infer that this amount of $113,631.75 comprised most of the sum of $116,498.35 which was repaid to Mr Wong in reduction of the principal when it was determined that it was not needed, as explained by Mr Wong in his oral evidence as follows:

“Then after they paid the tax debt they paid all the other fees, legals and purpose of other fees. They left 116,000 that they don't need to use any more because they did not expect they are going to pay more than this fee. Then the lawyer returned the money back to my lawyer and then my lawyer pays me back because they don't need that much any more.”

2. $24,925.60 transferred directly to the trust account of the liquidators of CBP; and

3. $20,000.00 to JAY Legal’s trust account for legal costs, probably in relation to a serious traffic matter involving Mr Novakovic, although Mr Wong’s evidence on this point was far from clear.

103. There was no dispute that on 24 July 2019, $116,498.35 (referred to above) was repaid to Mr Wong, thus reducing the principal owing to $278,501.00. Since that date, the outstanding principal, which was due on 1 July 2020, has not been repaid nor has any interest due under the Loan Agreement been paid.

Mr and Mrs Novakovic’s circumstances after June 2019

104. Mr Novakovic failed to attend Waverly Local Court in relation to the serious traffic matter referred to above. Mr Wong has not been able to locate him since that time and he has not worked as a builder for him on the building projects on which Mr Wong would otherwise have employed him.

105. In early 2020, Mr and Mrs Novakovic separated, in the Family Law sense referred to at [73], and Ivan moved out of the Silverdale property and in with a friend in the Campbelltown area.

106. In about early to mid-2020, Susan received in the mail a document giving notice of a caveat and telephoned Ivan to ask what it was about. He was unhelpful and told her to “get lost”. Mrs Novakovic consulted a lawyer who asked her to obtain a copy of the documents referred to in the notice of caveat. Susan contacted Mr Au-Yeung and asked him to provide a copy of the documents she had signed, which he did.

107. In the early hours of 1 January 2021, Ivan attended the Silverdale property when he was apparently affected by drugs and alcohol. Later that morning he argued with Susan, lost his temper and damaged some property. Ambulance and police officers were called. As a consequence, an ADVO was sought and a final ADVO for the protection of Susan and the children was made against Ivan on 12 January 2021 for two years. It was in the course of providing information to police in relation to this occurrence that Susan provided the details of when she had separated from Ivan, which have been referred to above.

Enforcement steps taken on behalf of Mr Wong

108. By a letter dated 7 April 2021 addressed to Mr and Mrs Novakovic at the Silverdale property, Penhall & Co provided a certificate pursuant to cl 9 of the Second Mortgage which stated that, as at 7 April 2021, the payout figure was $363,335.13. Information was also provided as to how that amount might be paid.

109. Included with that letter of 7 April 2021 was a notice dated 7 April 2021 pursuant to s 57(2)(B) of the Real Property Act 1900 (NSW) and s 111 of the Conveyancing Act 1919 (NSW) requiring payment of $363,335.13, calculated on the basis set out in the letter.

Findings on factual matters in dispute

110. Based on the facts set out above, my findings in relation to the particular factual matters, which the parties agreed were in dispute, are as follows:

1. Mrs Novakovic did not have the opportunity to negotiate the terms of the Loan Agreement and Second Mortgage before signing them.

2. Mrs Novakovic had the opportunity to read the Loan Agreement and Second Mortgage before signing, in that she could have read, and was not prevented from reading, the Loan Agreement and Second Mortgage as well as the other documentation that she signed in Mr Penhall’s lounge room before signing them if she had chosen to.

3. If Mrs Novakovic had read the Loan Agreement and the Second Mortgage before signing them, she would have been able to understand adequately their terms and conditions, given her qualifications and previous experience of other mortgages.

4. The provisions of the Loan Agreement and the Second Mortgage and their legal and practical effect were explained to Mrs Novakovic at least to the extent set in the Acknowledgement document and more likely than not orally, on the basis explained above. If Mrs Novakovic had additional queries Mr Au-Yeung was available to give further advice on request. Mr Au-Yeung’s previous work performed on a consultancy or contract basis for Mr Penhall’s firm and the fact that he had previously acted for Mr Wong did not render him not independent for the purposes of advising Mr and Mrs Novakovic on this occasion.

5. Mrs Novakovic was given legal advice, as explained above, concerning the legal and practical effect of the Loan Agreement and the Second Mortgage and this was adequate to enable her to understand the substance of the transaction, especially in light of her qualifications and her understanding obtained from previous experience with other mortgages.

6. The evidence did not establish that Mr Au-Yeung put any pressure, let alone unfair pressure, on Mrs Novakovic. As to Mr Wong and Mr Penhall, when they were in the lounge room, their very presence may well have had the effect of putting pressure on Susan to sign the documents, even though there was no evidence that this was their intention. Nonetheless, in my view, this type of pressure was not unfair in a relevant sense. This was principally because Mrs Novakovic’s feeling of being pressured arose from her being financially dependent on Ivan and from the lack of alternatives available to her if she wished to avoid or reduce the risk of losing her house. Her feeling of being intimidated arose out of her relationship with, and experience of, Ivan, especially his previous domestic violence and drug and alcohol abuse issues. This intimidation and the pressure which Ivan put on Susan before and at the time of signing the Loan Agreement and the Second Mortgage were unfair, in the sense that Susan was not responsible for them and should not have been subjected to them, and I have taken this into account. In this regard, I am also satisfied that Susan’s feelings of being pressured and intimidated were not something of which Mr Wong, Mr Penhall or Mr Au-Yeung were aware or ought to have been aware or of which any of them sought to take unfair advantage.

Should relief be granted under the Contracts Review Act?

111. By virtue of the par (a) of the definition of “Court” in s 4(1) of the Contracts Review Act, this Court is empowered under s 7 to make orders of the kind set out in s 7(1)(a)-(d), where it is found that the contract was “unjust in the circumstances relating to the contract at the time it was made”. Those orders include: an order refusing to enforce any or all provisions of a contract: s 7(1)(a); and, a declaration that a contract is void: s 7(1)(b). These are in effect the types of orders sought by Mrs Novakovic.

112. Section 7(3) expressly renders the operation of s 7 subject to the provisions of s 19 of the Act which relevantly provides in subs (1):

“An order made under section 7 (1) (b) or (c) has no effect in relation to a contract so far as the contract is constituted by a land instrument that is registered under the Real Property Act 1900.”

113. Since the Second Mortgage has been registered under the Real Property Act and given the terms of s 19(1), the Court has no power to declare that mortgage void. Nonetheless, were it appropriate, an order could be made under s 7(1)(d) requiring Mr Wong, as mortgagee, to execute an instrument that varies or discharges the Second Mortgage or directing the execution of a deed that operates between the parties to vary the terms of that mortgage: Capital Securities XV Pty Ltd (in liquidation) v Calleja [2020] NSWSC 301 at [141] (Adamson J). Consequently, it appears that appropriate relief could be granted in respect of the Second Mortgage, if an entitlement to relief were established, even if a declaration under s 7(1)(b) could not be made in respect of that contract.

114. In any event, it can be noted that Mr Wong has not sought to rely on s 19 as basis for refusing such relief as may be appropriate in this case. Nor has he relied on the restriction on the granting of relief in s 6 of the Contracts Review Act. Accordingly, it is no necessary to consider those sections further.

115. For the purposes of determining whether the Loan Agreement and the Second Mortgage were “unjust” in the circumstances relating to each of them “at the time they were made”, it can be noted that “unjust” is defined in s 4(1) as including “unconscionable, harsh or oppressive”. Furthermore, s 9 of the Contracts Review Act establishes a number of mandatory considerations to which regard must be had when the Court is making that determination. These may be summarised as follows:

1. the public interest;

2. all the circumstances of the case including the consequences or results of compliance or non-compliance with the provisions of the Loan Agreement and the Second Mortgage; and

3. to the extent relevant to the circumstances:

1. any material inequality of bargaining power between the parties;

2. whether the terms of the contract were subject of negotiation and it was reasonably practicable to negotiate for any terms to be altered or rejected;

3. whether any of the terms were unreasonably difficult to comply with or not reasonably necessary to protect the legitimate interests of a party;

4. whether any party’s interests were not reasonably able to be protected, by the party or the party’s representative;

5. the physical form of the contract and its intelligibility;

6. whether the party seeking relief obtained independent legal or other expert advice;

7. the extent to which the provisions of the contract were explained to the party seeking relief and whether that party understood the provisions and their effect;

8. whether any undue influence, unfair pressure or unfair tactics were exerted on the party seeking relief by any other party or representative;

9. the conduct of the parties in relation to similar contracts; and

10. the commercial or other setting, purpose and effect of the contract.

116. The provisions of Pt 2 of the Contracts Review Act essentially require the Court to undertake a three step process, as explained by Basten JA (Handley JA agreeing) in Perpetual Trustee Co Ltd v Khoshaba, at [106]-[109]. The first is to make findings of primary fact as to the circumstances revealed in the evidence. The second step involves making an evaluative judgment as to whether the facts as found satisfy the statutory description of the contract or its provisions being “unjust in the circumstances relating to the contract at the time it was made”. The third step involves the exercise of the discretionary power to grant relief which may, but need not, follow from the conclusion that a contract or one of its provisions is unjust.

117. As to the first step, I have set out my relevant findings above.

118. The general principles that guide the second step, the consideration of whether a contract or one of its provisions is “unjust”, include those stated by Gleeson JA in Lauvan Pty Limited v Bega; [2018] NSWSC 154 at [283]-[285]; (2018) 330 FLR 1 which were cited with approval by Bell P (as the Chief Justice then was) in Magann v The Trustees of the Roman Catholic Church for the Diocese of Parramatta [2020] NSWCA 167 at [50]. Those general principles are as follows (with the citation of authorities omitted):

1. One of the general legislative purposes of the Contracts Review Act is to protect persons who, for various reasons, are not able to look after their own interests, and who are preyed upon by dishonesty, trickery and other forms of predation.

2. A contract will not be unjust merely because it was not in someone's interest to enter into it; or because it was inopportune or produced a loss; or because the party seeking relief was foolish, gullible or greedy; or because the contract was burdensome, a hard bargain, strongly in the interests of the party against whom relief is sought, or in some sense unreasonable.

3. The significance of the absence of independent legal advice will depend on the circumstances. It will be of particular significance if the party seeking to enforce the contract is actually aware that the advice has not been given or has not been understood.

119. In addition, in this case, there was no substantial dispute between the parties as to the way in which the evaluative assessment should be undertaken. In this regard, it is sufficient to quote the well known explanation by Allsop P of the evaluative process, in Provident Capital Ltd v Papa (2013) 84 NSWLR 231; [2013] NSWCA 36 at [7]:

“The broad evaluation of unjustness under the Contracts Review Act 1980 (NSW) ss 4, 7 and 9 involves the normative evaluation of the totality of relevant circumstances. Inevitably minds may differ as to conclusions about such questions. Also, it is often not fruitful to compare other cases with the particular circumstances at hand, lest one be deflected from an appropriate overall assessment by focus on particular aspects relevant to any such comparison. Central to the normative evaluation is the recognition that there is a need for the protection of some people in some circumstances, who are not able fully to protect their own interests against factors that may cause injustice. That vulnerability may come from one or more of many circumstances, such as lack of education or of intelligence, from gullibility, from the predation of fraud and greed, and also sometimes from loyalty and love. The characterisation of a contract as unjust and the sheeting home to the other contracting party of the consequences of its unjustness may be a difficult evaluative exercise. At its heart, however, is the recognition of the inadequacy of one party to protect her or his interests in the circumstances.”

120. In applying these principles to the facts as found, I have had regard to factors in s 9 which arise in the circumstances of the present case, as set out in the paragraphs which follow.

121. In my view, there is a public interest in holding persons to obligations assumed and declarations made in documents signed by them: Toll at [47]. Further, Mrs Novakovic obtained a benefit as a result of signing and agreeing to be bound by the Loan Agreement and the Second Mortgage, namely, remaining in the Silverdale property for a significant period as a result of funds being made available to pay CBP’s tax liability and to have the winding up terminated which allowed Mr Novakovic to continue to be employed and provide financial support to some extent for his wife and children. In addition, the terms of the Loan Agreement and the Second Mortgage were not unusually onerous or harsh and did not, in my view, give rise to any public interest in favour of the Loan Agreement and the Second Mortgage not being enforced. In short, consideration of the public interest did not weigh in favour of a finding that the contracts, or their provisions, were unjust in the relevant sense.

122. Although there was some inequality of bargaining power between Mrs Novakovic and Mr Wong, given their respective circumstances which I have outlined above, such inequality was not out of the ordinary as between a lender and a borrower, who through no fault of the lender is in difficult financial circumstances. In any event, this inequality of bargaining power was not exploited by Mr Wong to obtain a bargain whose terms were harsh, oppressive or unconscionable.

120. I have accepted that Mrs Novakovic did not have the opportunity to negotiate the terms of the Loan Agreement and Second Mortgage before signing them and it was not reasonably practicable for her to do so. Nonetheless, it was not suggested that the terms of those contracts were onerous or unusual or that the terms, in themselves, rendered the contracts “unjust”. In addition, it was not put to Mr Wong that, if alterations or deletions had been requested, he would have refused to consider them or negotiate in relation to them.

121. Furthermore, it was not suggested, and I do not find, that any of the terms of the Loan Agreement or the Second Mortgage were unreasonably difficult to comply with or were not reasonably necessary to protect the legitimate interests of Mr Wong or the Novakovics.

122. There was no vulnerability, or inability to protect her interests, on Mrs Novakovic’s part, arising out of any lack of education or of intelligence, or from gullibility. Susan’s vulnerability was essentially financial and emotional. The financial vulnerability arose out of the fact that she and her children were dependent on Ivan for financial support, especially in relation to making mortgage repayments to Perpetual, and his ability to do so depended on his continuing to be employed which, in turn, depended on CBP not being wound up. The vulnerability was also emotional given that she had been a victim of domestic violence from at least 12 January 2016. Nonetheless, by signing the documentation, she avoided or reduced the risk of mortgage repayments not being made to Perpetual and consequently avoided or reduced the risk of Perpetual taking possession of and selling the family home at Silverdale, at least for a period of time.

123. Mrs Novakovic could have read if she had chosen to, and was not prevented from reading, the Loan Agreement and Second Mortgage as well as the other documents, before signing them in Mr Penhall’s lounge room. In other words, she had the opportunity to read those documents. In addition, there was nothing about the physical form of the documentation which made it difficult to read or understand. If Mrs Novakovic had read the Loan Agreement and the Second Mortgage before signing them, she would have been able to understand adequately their terms and conditions, given her qualifications and previous experience of other mortgages.

124. Furthermore, from the legal advice summarised in the Acknowledgement document, Susan would have had an adequate understanding of the effect of what she was signing and that understanding would not have been materially different from her pre-existing understanding of the general effect of, and consequences of signing, loan agreements and mortgages gained from her prior experience with the St George Bank mortgage and the Perpetual mortgage.

125. There was also a solicitor present, Mr Au-Yeung, who was available to give independent legal advice concerning the documents, if there was something Susan did not understand and wanted clarified. In any event, I am not satisfied that, even if Mr Au-Yeung did not give Mrs Novakovic any legal advice, either Mr Wong or Mr Penhall was aware of this or of the fact that the Acknowledgement document and the Declaration by Borrowers could not be relied upon as being factually accurate.

126. It was not suggested, and I do not find, that Mrs Novakovic was subject to any form of fraud or deception.

127. As referred to above, I do accept, however, that Susan felt under pressure to sign the documentation and felt intimidated. To the extent that this pressure and intimidation came from Ivan, it was unfair, in the sense I have explained above. This was not something, however, for which Mr Wong, Mr Penhall or Mr Au-Yeung were responsible or of which they were aware. Consistently with this, it was not suggested that any of those three men sought to exploit Mrs Novakovic’s feelings of pressure or intimidation in any way in order to obtain a transaction on unduly advantageous terms for Mr Wong or in any other way that involved unfairness or unconscientiousness on their part.

128. Finally, I note that when Mrs Novakovic signed the documentation, she was scared about losing the house and being homeless and she did not give evidence that she would not have signed the Loan Agreement or the Second Mortgage but for the pressure or intimidation from Ivan, or any of the other men present on 17 June 2019, or if the practical effect of those documents had been explained to her in detail. She did not give evidence that she had any alternative course of action available to her if she wished to avoid or reduce the risk of losing the family home at Silverdale in June 2019.

129. In all the circumstances, my evaluative assessment of the relevant circumstances in relation to the broad concept of unjustness is that any substantive or situational injustice involved in Mrs Novakovic’s signing the documentation was quite limited and did not lead to there being “unjust dealings which offended against community standards of business morality”, to adopt the language of J R Peden in his report, Harsh and Unconscionable Contracts: Report to the Minister for Consumer Affairs and Co-operative Societies and the Attorney-General for New South Wales, 1976, quoted by Allsop P in Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389 at [270]; (2011) ASC ¶155–107. In addition, this was not a case in which Mrs Novakovic demonstrated an inability reasonably to protect her own interests which gave rise to the contracts which are now sought to be set aside or declared unenforceable, since entering into the Loan Agreement and the Second Mortgage can reasonably be seen as being in her interest at the time they were entered into. Thus, I do not find that the Loan Agreement or the Second Mortgage or any provision of either of them to be relevantly unjust in the circumstances at the time when each of them was made on 17 June 2019, for the purposes of s 7 of the Contracts Review Act.

130. Accordingly, the discretionary power to grant relief under the Contracts Review Act is not engaged in this matter and Mrs Novakovic’s cross claim must fail as against Mr Wong.

Conclusion on Mr Wong’s claim for possession against Mrs Novakovic

134. In addition, the only persons who reside at the Silverdale property and resided there when proceedings were commenced were Mrs Novakovic and her children. Children who reside at a property with their parent who is an owner of the property are not occupiers for the purposes of r 6.8 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR): Secure Funding Pty Limited v Coughlin (2009) 74 NSWLR 687; [2009] NSWSC 384 at [10]-[14] (Schmidt AJ) and the authorities there cited. Accordingly, r 6.8 of the UCPR was not engaged in this case and the statement of claim was not required to be served on the children.

135. As noted above, the only basis on which Mrs Novakovic opposed the relief sought by Mr Wong was that the Loan Agreement and the Second Mortgage were unjust contracts within s 7 of the Contracts Review Act and relief under that Act would prevent those contracts being enforced against her as sought in Mr Wong’s statement of claim.

136. Since Mrs Novakovic’s claim under the Contracts Review Act has not been successful, there is no reason why there should not be a judgment for possession against Mrs Novakovic.

137. As to the order sought that there be leave to issue a writ of possession forthwith, there does not appear to be any reasons why that order should also not be made. But, since the Silverdale property is the family home of Mrs Novakovic and her children, execution of any writ of possession should be stayed for an appropriate period to allow them to find other accommodation and to move out.

Other claims and costs

138. Mr Novakovic is taken to have been served with the statement of claim and has not taken any steps to oppose the making of the orders sought by Mr Wong against him. In light of the evidence, which I accept, in the affidavits of Mr Wong and Mr Penhall concerning the signing of the documents, the advancing of the funds, the partial repayment of principal and the failure to make any other payments of principal and interest, and the certificate and notice sent by Mr Penhall to Mr Novakovic at the address of the Silverdale property, I am satisfied that the orders sought by Mr Wong in his statement of claim should be made against Mr Novakovic, as well as Mrs Novakovic.

139. Since Mr Novakovic has taken no part in the proceedings and any judgment for possession would be given “in his … absence”, r 36.8 of the UCPR may apply. Rule 36.8 relevantly provides:

“(1) Unless the court orders otherwise, judgment for possession of land may not be given or entered against a defendant in his or her absence unless the plaintiff files an affidavit—

(a) stating that, when the originating process was filed or (if the claim for possession arises from an amendment to the originating process) when the amendment was made—

(i) specified persons (other than parties to the proceedings) had been in occupation of the whole or any part of the land, or

(ii) no persons (other than parties to the proceedings) had been in occupation of the whole or any part of the land, and

(b) stating that, as to each person specified in accordance with paragraph (a)(i) (other than a person whose occupation the plaintiff does not seek to disturb)—

(i) the originating process has been duly served on the person, or

(ii) the person has, since the time referred to in paragraph (a), ceased to be in occupation of any part of the land, and

(c) in relation to a claim for possession by reason of default in the payment of money, stating particulars of the default.

…”.

140. The plaintiff, Mr Wong, has not filed an affidavit stating that, when the originating process was filed, no persons (other than parties to the proceedings) had been in occupation of the whole or any part of the land, although Mr Wong’s affidavit of 14 May 2021 does state the particulars of the default in payment of money upon which the claim for possession is based, thus satisfying par (c) of r 36.8(1). The evidence established that only Mrs Novakovic and her children lived at the Silverdale property when the proceedings were commenced. Although the children of Mrs Novakovic did occupy the Silverdale property in that they lived there, as explained above, the children living with their mother were not “in occupation” or “occupiers” for the purposes r 36.8 or r 6.8 of the UCPR. In the circumstances, in my view, nothing would be accomplished by requiring Mr Wong to file a further affidavit stating that no persons other than Mr and Mrs Novakovic were in occupation of the Silverdale property at the time of commencement of proceedings, as a precondition to giving judgment for possession in this matter. Accordingly, I shall otherwise order for the purposes of r 36.8(1) that judgment for possession of land may be given in this case without the plaintiff filing an affidavit complying with r 36.8(1).

141. Mrs Novakovic has not served her cross claim on, or obtained an order for substituted service of her cross claim in respect of, Mr Novakovic. Accordingly, it is inappropriate to make any orders as sought against Mr Novakovic by Mrs Novakovic in her cross claim.

142. As to costs and as between Mr Wong and Mr and Mrs Novakovic, there does not appear to me to be any reason why costs should not follow the event. Accordingly, since Mr Wong has been successful on his claim against both Mr and Mrs Novakovic and Mrs Novakovic has been unsuccessful on her cross claim against Mr Wong, Mr and Mrs Novakovic should be ordered to pay Mr Wong’s costs of his claim against them and Mrs Novakovic should be ordered pay the costs of her cross claim against Mr Wong. Furthermore, since the costs incurred by Mr Wong were moneys secured by the Second Mortgage including all “costs or expenses … of or incidental to obtaining or enforcing payment of all or any of those monies under or by virtue of this Mortgage” within cl (1)(f) of annexure A to the Second Mortgage, it appeared to me to be appropriate to order that the costs be paid on an indemnity basis, to the extent that such an order may be necessary.

143. Since Mrs Novakovic may wish to consider her position in relation to her cross claim against Mr Novakovic and, as noted above, there may be a dispute between Mr Wong and Perpetual as to whether Mr Wong’s costs should be paid as a priority, I shall not make any order in those regards but shall grant the parties liberty to apply, within 14 days of these orders, for consideration any further orders that any party seeks.

Orders

144. For all these reasons the orders of the Court are:

1. Judgment for possession of land may be given in this case without the plaintiff (Mr Wong) filing an affidavit complying with r 36.8(1) of the Uniform Civil Procedure Rules 2005 (NSW).

2. Judgment for the plaintiff for possession of the land comprised in Certificate of title folio identifier XXX being the land situated at XXX Silverdale, NSW 2752.

3. Leave to issue a writ of possession forthwith.

4. The execution of the writ of possession is stayed until midnight on 24 September 2022 or such later time as the Court may determine.

5. The first and second defendants (Mr and Mrs Novakovic) are to pay the plaintiff’s costs of the plaintiff’s claim against them on an indemnity basis.

6. Judgment for the first cross defendant (Mr Wong) on the first cross claim.

7. The first cross claimant (Mrs Novakovic) is pay the first cross defendant’s costs of the first cross claim on an indemnity basis.

8. The parties have liberty to apply by notice of motion, filed within 14 days of these orders, seeking any further orders in this matter.

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Amendments

12 August 2022 - Removed certification.

Decision last updated: 12 August 2022