KERRY JANE FRASER v KIRSTY POWER and ORS. [2000] NSWSC 257

Reported Decision : [2001] Aust Contract R 90-127

New South Wales Supreme Court

CITATION : KERRY JANE FRASER v KIRSTY POWER and ORS. [2000] NSWSC 257 CURRENT JURISDICTION: EQUITY FILE NUMBER(S) : SC 1334/1997 HEARING DATE(S) : 22, 23 and 24 February 2000 JUDGMENT DATE : 6 April 2000

PARTIES : KERRY JANE FRASER v KIRSTY POWER and ORS. JUDGMENT OF : Simos J

COUNSEL : I.M. Wales, SC (Plaintiff - Cross-Defendant) G.K. Burton (First and Second Defendant - Cross-Claimants) SOLICITORS : Fox & Staniland (Plaintiff - Cross-Defendant) Gillis Delaney Brown (First and Second Defendants - Cross-Claimants) CATCHWORDS : Mortgage - Construction - Held, mortgage had effect only to secure repayment of debts owed jointly by husband and wife of which there were none - Rectification - Held, the first and second defendants had not established that the mortgage ought to be rectified - Guarantee - Release of Guarantor - Held, release of guarantor operated to discharge mortgagors from liability under the mortgage - Mortgage - Held, deed of variation of principal debt operated to discharge mortgagors from liability under mortgage - Unconscionable Conduct - Held, the third defendant had been guilty of unconscionable conduct with the result that the mortgage was liable to be set aside as against the third defendant - Held, further, that the mortgage was also liable to be set aside as against the first and second defendants - Contracts Review Act 1980 - Held, that the mortgage was unjust in the circumstances in which it was made within the meaning of the Contracts Review Act 1980 - Held, further, that the mortgage should be set aside as against the first and second defendants - Conveyancing Act 1919 - Section 23C(1)(b) - Held, the husband's oral declaration of trust of his one-half interest as joint tenant in the subject land in favour of the wife was valid and enforceable - Limitation Act 1969 - Held, the wife's claim to enforce the oral declaration of trust by the husband in her favour was not barred by the Act Bankruptcy Act 1966 (Cwlth) Contracts Review Act 1980 (NSW) Fair Trading Act 1987 (NSW) LEGISLATION CITED : Law Reform (Miscellaneous Provisions) Act 1965 Limitation Act 1969 (NSW) Real Property Act 1960 (NSW) Supreme Court Act 1970 Codelfa Construction Pty. Limited v State Rail Authority of New South Wales (1981-1982) 149 CLR 337 Commercial Bank of Australia Limited v Amadio (198201983) 151 CLR 447 Con-Stan Industries of Australia Pty. Limited v Norwich Winterthur Insurance (Australia) Limited (1985-1986) 160 CLR 226 Garcia v National Australia Bank Ltd. (1998) 194 CLR 395 Last v Rosenfeld (1972) 2 NSWLR 923 CASES CITED : Louth v Diprose (1992) 175 CLR 621 Richards v Commercial Bank of Australia (1971) 18 FLR 95 The Commonwealth v Verwayen (1989-1990) 170 CLR 394 Waltons Stores (Interstate) Limited v Maher (1987-1988) 164 CLR 387 Wratten v Hunter (1978) 2 NSWLR 367 Yerkey v Jones (1939) 63 CLR 649 DECISION : Mortgage held to secure repayment only of debts owned by husband and wife jointly of which there were none; mortgage set aside as against first and second defendants; see also paragraphs 186 and 187.