Teresa Starceavich & 1 Or v Swart & Associates Pty Ltd [2006] NSWSC 960

Reported Decision : (2007) NSW ConvR 56-165

New South Wales Supreme Court

CITATION : Teresa Starceavich & 1 Or v Swart & Associates Pty Ltd [2006] NSWSC 960 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 07/09/06

JUDGMENT DATE : 8 September 2006

JURISDICTION : Equity Division

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 09/08/2006

DECISION : See para 69 of judgment.

CATCHWORDS : MORTGAGES – Mortgages and charges generally – Rights and liabilities of mortgagor and mortgagee – Defendant advanced sum of $45,000 to plaintiffs – Advance secured by registered second mortgage over real property owned by plaintiffs – Plaintiffs defaulted in making payments of interest and did not repay principal – Defendant took possession of property and attempted to exercise power of sale – Whether serious question to be tried that defendant not entitled to take possession of property – Whether serious question to be tried that defendant not entitled to exercise power of sale - CONTRACTS – General contractual principles – Harsh and unconscionable contracts and statutory remedies – Mortgage contract between plaintiffs and defendant included arguably oppressive terms – Interest payable at rate of 126 per cent per annum compounding at monthly rests – Whether serious question to be tried that plaintiffs entitled to relief pursuant to s 7 Contracts Review Act 1980 (NSW) - EQUITY – Unconscionable conduct – Whether serious question to be tried that plaintiffs in position of special vulnerability of which defendant took unconscientious advantage - EQUITY – Equitable remedies – Injunctions – Interlocutory injunctions – Whether plaintiffs required to pay into Court whole sum demanded by defendant as condition of interlocutory injunctive relief – Balance of convenience – Interlocutory injunctive relief granted.