NSW Caselaw
New South Wales Supreme Court
CITATION : Yeshiva v Marshall [2004] NSWSC 921 HEARING DATE(S) : 28/09/04, 29/09/04 JUDGMENT DATE : 8 October 2004
JUDGMENT OF : Gzell J DECISION : Borrowers' claims to set aside loan and mortgage dismissed. Orders for repayment of principal and interest made on lender's cross claim.
CATCHWORDS : EQUITY - Fiduciary Obligations - Whether agent of lender in short term bridging loan market implicated with sufficient knowledge of a breach of duty by the directors of the borrowing companies to justify setting aside the loan and mortgage under the second limb of Barnes v Addy - Whether the loan at 72% pa with a default rate of 102% pa infringed the Consumer Credit (New South Wales) Act 1995 and the Consumer Credit (New South Wales) Code Consumer Credit (New South Wales) Act 1995 Consumer Credit (Queensland) Act 1994 (Qld) LEGISLATION CITED : Consumer Credit (New South Wales) Code Oaths Act 1900 Consumer Credit (New South Wales) Special Provisions Regulation 2002 Jones v Dunkel (1959) 101 CLR 298 Cubillo v Commonwealth (No 2) (2000) 103 FCR 1 CASES CITED : Barnes v Addy (1874) LR 9 Ch App 244 Consul Development Pty Ltd v DCP Estates Pty Ltd (1975) 132 CLR 373 NCR Australia Pty Ltd v Credit Connection Pty Ltd [2004] NSWSC 1 Yeshiva Properties No.1 Pty Ltd - 1st Plaintiff/1st Cross Defendant Yeshiva Properties No.2 Pty Ltd - 2nd Plaintiff/2nd Cross Defendant Yeshiva Properties No.3 Pty Ltd - 3rd Plaintiff/3rd Cross Defendant PARTIES : Yeshiva Properties No.4 Pty Ltd - 4th Plaintiff/4th Cross Defendant Yeshiva Properties No.5 Pty Ltd - 5th Plaintiff/5th Cross Defendant Yeshiva Properties No.6Pty Ltd - 6th Plaintiff/6th Cross Defendant Yeshiva Properties No.7 Pty Ltd - 7th Plaintiff/7th Cross Defendant Joan Marshall - Defendant/Cross Claimant FILE NUMBER(S) : SC 3194/04 COUNSEL : Mr C Newlinds SC/ Mr R Bellamy - Plaintiffs/Cross Defendants Mr M Dempsey SC/Mr C Mobellan - Defendant/Cross Claimants SOLICITORS : Landerer & Company Solicitors & Attorneys Turner Freeman Lawyers
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