ROBERTS v STATE BANK OF NEW SOUTH WALES; ROBERTS v STATE BANK OF NEW SOUTH WALES [1994] NSWCA 367

ROBERTS v STATE BANK OF NEW SOUTH WALES; ROBERTS v STATE BANK OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, SHELLER and POWELL JJA 2 December 1994, 16 December 1994

[1994] NSWCA 367

CONTRACT — unjust — relief claimed — experienced borrowers assert lack of knowledge of extent and nature of personal covenants — judge disbelieves their evidence — held: Appeal dismissed. Devries v Australian National Railways Commission (1993) 177 CLR 472 applied.

JUDGMENTS & ORDERS — reasons — adequacy of — held — Judgment adequately states grounds for decision.

CONTRACT — JUDGMENTS & ORDERS -unjust contract — Contracts Review Act 1980, s7(1) — claim for relief from security contracts entered with bank — wife and ex-husband execute security documents over home as security for an advance to a company in which each was interested — each expected the company to succeed financially — upon call up of mortgage over home, each seeks relief under the Act — claim that extensive security documents, including personal covenants, were not understood — claim of misrepresentations by bank officers concerning the content of such documents — claim that access to independent legal advice, although mentioned in a certificate furnished by the bank, was discouraged — assertion that contracts unjust — primary judge (Smart J) finds husband and wife experienced business people with good understanding of mortgages and clear appreciation of risks under personal covenants — rejects claim for relief under Act — on appeal — held: (Sheller JA; Kirby P and Powell JA concurring): Upon he findings of fact made by the primary judge, particularly relating to the experience and understanding of the borrowers, the contracts were not unjust and no error was shown in the denial of relief under the Act. Devries v Australian National Railways Commission (1993) 177 CLR 472 applied.