Woodman v Kudosa Pty Ltd

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

S CI 2015 05760

TANIA WOODMAN	Plaintiff
v
KUDOSA PTY LTD (ACN 114 367 234) (formerly East Qualify Homes Pty Ltd ACN 114 367 234)	Defendant

---

JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 November 2015
DATE OF RULING:	16 November 2015
CASE MAY BE CITED AS:	Woodman v Kudosa Pty Ltd
MEDIUM NEUTRAL CITATION:	[2015] VSC 675

---

EQUITY – Mortgage – Loan to business secured by mortgage over business properties –  Further mortgage registered on default over plaintiff’s personal investment property – Whether or not loan agreement explained to plaintiff – Unconscionability - Solicitor’s certificate – Interlocutory injunction restraining sale of property sought – Whether or not plaintiff a volunteer – Whether security unenforceable.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P. Miller	Rosendorff Lawyers
For the Defendant	Ms M. Rozner	Ronayne Owens Lawyers

HIS HONOUR:

1. By writ filed 9 November 2015, the plaintiff seeks declarations to the following effect:

(a)        That the personal guarantee provided by her to the defendant on 27 June 2015 is invalid and otherwise unenforceable;

(b)        That this personal guarantee be set aside; and

(c)        That a mortgage provided by the plaintiff to the defendant be set aside.

1. This proceeding is the second return of a summons in which the plaintiff seeks an interlocutory injunction until final determination restraining the defendant from taking any steps to complete the sale of the relevant property or otherwise enforcing the mortgage it holds over that property.  Alternatively, the plaintiff seeks the same restraint but until 27 November 2015.

Factual background

1. The plaintiff has been the proprietor of 16 Westwood Drive, Mill Park (‘the Mill Park property’).  She bought that property in July 2000 for $50,000.  Its current market value is $460,000 and there is a registered mortgage in favour of Perpetual Trustees Australia Ltd – about $140,000 is owed under that facility.  The property has been tenanted since 2003.

1. The plaintiff has been romantically attached to Nathaniel Whitehall since 2001.  They have five children together.  They lived in the Mill Park property for a couple of years early in the 2000s.  They have now lived in Sydney for many years.

1. Mr Whitehall is, according to an affidavit sworn by the plaintiff, a Qantas pilot, a property developer and a businessman.  The plaintiff asserts that during their relationship Whitehall has bought and developed many properties.  She says that, in the past, she did not involve herself in his business.  She said that after the global financial crisis Whitehall advised her he owed millions of dollars to creditors, and in about 2012 he told her that he had been made bankrupt.  Whitehall confirms this is in an affidavit sworn for these proceedings.

1. In her affidavit, the plaintiff sets out that Mr Whitehall effectively made her a ‘dummy front’ (my words) for his business activity from about December 2012 onwards.  In short compass:

·She became the director and shareholder of Caprice Beach…