Collier, R.J. & Anor v Australia & N.Z. Banking Group Ltd [1988] FCA 405

IT No. 405/ 8%...

JLDGMER IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. G417 of 1987 ) GENERAL DIVISION ) BETWEEN: ROBERT JOHN COLLIER and

MARION LOUISE COLLIER

Applicants

AND: AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED

Respondent

CORAM: M. L. FOSTER, J. DATE: 11 JULY, 1988. PLACE: SYDNEY.

REASONS FOR JUDGMENT

(EXTEMPORE )

HIS HONOUR: The Court has before it a Notice of Motion dated 8 July, 1988 brought by Robert John Collier and Marion Louise Collier against the Australia and New Zealand Banking Group Limited. The Notice of Motion is entitled G417 of 1987 and is brought in proceedings which had previously been commenced between these parties by Application in this Court bearing the

same numeration dated 10 September, 1987.

It sufficiently appears that the relief sought in that Application 18 co-extensive with relief sought in the Statement of Claim brought in the Supreme Court of New South Wales on 15 May, 1987. Both the Application in this Court, and the Statement of Claim in the Supreme Court, seek to attack a mortgage document dated 31 January 1985 entered into between the applicants, as mortgagors, and the bank as mortgagee. The mortgage is given in respect of premises, 44 Lerida Avenue, Camden, such premises

being the home of the applicants.

In both proceedings, attack 1s made on the basis of

breaches of part 5 of the Trade Practices Act, 1974 (Cth) and, it

would appear, on relevant equitable principles relating to unconscionability and the like in connection with the entering into of mortgages. A claim was made in the Supreme Court proceedings for the review and the necessary alteration of the

mortgage pursuant to the Contracts Review Act, 1980 (N.S.W.) and

a similar claim 1s made in the Application before this Court on the basis of what 1s described as the Court's accrued