Pirovic v Barbieri [2020] NSWSC 1892

Supreme Court New South Wales

Medium Neutral Citation: Pirovic v Barbieri [2020] NSWSC 1892 Hearing dates: 29, 30 October and 12, 13, 26 November 2020 Further written submissions received from the plaintiffs on 8 December 2020 Decision date: 21 December 2020 Jurisdiction: Equity - Expedition List Before: Sackar J Decision: See [394]-[395] Catchwords: CONTRACTS — MORTGAGES AND SECURITIES — Mortgages — Mortgage contracts — Whether certain monies were advanced to plaintiffs and intended to be secured by mortgage — Where contract contained an "all monies" clause — Construction of "all monies clause" CONTRACTS — MORTGAGES AND SECURITIES — Mortgages — Mortgage contracts — Covenants — Construction of convents concerning repayment of principal and interest — Where mortgagor liable to repay mortgage and accrued interest on demand for repayment CONTRACTS — Formation — Consideration — Where mortgagee promised mortgagor that she and her husband could live in property subject of the mortgage for as long as they wished and he would not call upon the mortgage until the property was sold — Whether mortgagor's promise part of the consideration provided for mortgage contract ESTOPPEL — Promissory estoppel — Where mortgagee promised mortgagor that she and her husband could live in property subject of the mortgage for as long as they wished and he would not call upon the mortgage until the property was sold at the time mortgagor executed mortgage document — Whether mortgagee estopped from making demand under mortgage prior to conditions being fulfilled MORTGAGES AND SECURITIES — Mortgages— Whether demand made Legislation Cited: Competition and Consumer Act 2010 (Cth), Schedule 2 (Australian Consumer Law) ss 23, 237(1)(a)(ii), 243(a) and 244 Contracts Review Act 1980 (NSW) ss 7, 9, 19 Conveyancing Act 1919 (NSW) s 91(1) Cases Cited: Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 Ayoub v Euphoric Pty Ltd [2004] NSWCA 457 Bank of Baroda v Panessar [1987] Ch 335; [1986] 3 All ER 751 Bunbury Foods Pty Ltd v National Bank of Australasia Ltd (1984) 153 CLR 491 Crane v Colonial Mutual Fire Insurance Co Limited [1920] 28 CLR 305 Electricity Generation Corporation v Woodside Energy Pty Ltd (2014) 251 CLR 640 Esso Petroleum Co Ltd v Alstonbridge Properties Ltd [1975] 3 All ER 358 Estoril Investments Pty Ltd v Westpac Banking Corp (1993) 6 BPR 13,146 Fox v Percy (2003) 214 CLR 118 Gleeson v Gleeson [2002] NSWSC 418 Murphy v Lawrence [1960] NZLR 772 Ogilvie v Adams (1981) VR 1041 Oversea-Chinese Banking Corp Ltd (OCBC) v Malaysian Kuwaiti Investment Co (MKIC) and Aljade [2003] VSC 495 Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited (S99/2015; S102/2015) (2015) 256 CLR 104 Re Piccolo, McVeigh (Trustee of the Estate of John Peter Piccolo) the National Australia Bank Limited (2000) FCA 187 Sidhu v Van Dyke (2014) 251 CLR 505 State Lotteries Office v Burgin CA (NSW) 19 May 1993, CA 40133/93 Unreported Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Verduci & Anor v Golotta [2010] NSWSC 506 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 Texts Cited: E.L.G Tyler, Fisher and Lightwood's Law of Mortgage (LexisNexis Butterworths, 3rd ed, 2013) Category: Principal judgment Parties: Antun Pirovic (first plaintiff) Zorina Pirovic (second plaintiff) Anita Victoria Barbieri (defendant) Representation: Counsel: J Drummond (plaintiffs) A Cheshire SC (defendant)