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Wong v Novakovic

Wong v Novakovic

Case [2022] NSWSC 1072 12 August 2022

Unjust Enrichment

Contract Formation

Contract Law

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wong v Novakovic

Details

AGLC: Wong v Novakovic [2022] NSWSC 1072
Case: [2022] NSWSC 1072
Decision Date: 12 August 2022

CaseChat Overview and Summary

The matter of Wong v Novakovic involved the plaintiff seeking to have a contract declared unjust and for a writ of possession to be issued against the defendant. The dispute was heard in the Supreme Court of New South Wales. The plaintiff, Mr. Wong, alleged that a contract made with the defendant, Mr. Novakovic, was unjust at the time it was formed and sought to have it reviewed under the Contracts Review Act 1980 (NSW). Additionally, Mr. Wong applied for leave to issue a writ of possession in respect of a property that was the subject of the contract.

The court was required to determine whether the contract was unjust in the circumstances at the time it was made and, if so, to what extent the contract should be reviewed or set aside. The court also had to consider whether the contract was unjust in a way that warranted granting leave to issue a writ of possession.

In delivering the judgment, the court found that while Mr. Novakovic may have exerted some pressure on Mr. Wong to sign the contract, the contract was not unjust in the relevant sense. The court noted that the pressure did not rise to the level required to deem the contract unjust under the relevant statute. Consequently, the court dismissed the application for the contract to be reviewed. The court, however, granted the application for leave to issue a writ of possession as it found that Mr. Wong was entitled to possession of the property based on the terms of the contract and the circumstances at the time of the agreement.

The court ordered that leave be granted for a writ of possession to be issued in favour of the plaintiff. The contract was not to be reviewed, and the defendant was to be ordered to vacate the property as per the terms of the contract.

Orders