Commonwealth Bank of Australia v Hilellis & Ors [2009] NSWDC 9

New South Wales District Court

CITATION: Commonwealth Bank of Australia v Hilellis & Ors [2009] NSWDC 9 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 2, 3, 4, 5 and 6 February 2009

JUDGMENT DATE: 13 February 2009

JURISDICTION: District Court - Civil

JUDGMENT OF: Levy SC DCJ

DECISION: 1. Verdict and judgment for the Plaintiff in the sum of $121,804.54. 2. The Defendants are ordered to pay the Plaintiff's costs.

CATCHWORDS: SUB-PRIME MORTGAGE – claim by a bank alleging misleading and deceptive conduct on the part of purchasers, vendors and an employee of a mortgage broker who introduced the purchasers to the lender for the procurement of a mortgage – purchasers shown to have acted fraudulently – transaction not at arm's length – action by mortgagee against vendors and employee of mortgage broker to recover shortfall in funds after mortgagee sale of property following default by the mortgagor

LEGISLATION CITED: Fair Trading Act, 1987 (NSW) Trade Practices Act, 1974 (Cwth)

Best v Housing Commission of NSW 17 LGR (NSW) 129 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Brien v Dwyer (1978) 141 CLR 378 Chamberlain v R (No 2) [1984] HCA 7; (1984) 153 CLR 521 Doney v R [1990] HCA 51; (1990) 171 CLR 207 CASES CITED: Equity Access Pty Ltd v Westpac Banking Group (1990) ATPR 40-994 Havyn v Webster [2005] NSWCA 182 King v GIO Australian Holdings Pty Ltd [2001] FCA 308 Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 Richard Evans & Co Ltd v Astley [1911] AC 674 Taco Company of Australia Inc & Anor v Taco Bell Pty Ltd (198) 42 ALR 177 Yorke v Lucas (1985) 158 CLR 661