Higgs and Ors v Thompson bht The Protective Commissioner and Ors [2006] NSWSC 920

New South Wales Supreme Court

CITATION : Higgs and Ors v Thompson bht The Protective Commissioner and Ors [2006] NSWSC 920 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 4 September 2006, 5 September 2006

JUDGMENT DATE : 5 September 2006

JUDGMENT OF : Johnson J at 1

EX TEMPORE JUDGMENT DATE : 09/05/2006

DECISION : See paragraphs 50ff of judgment.

CATCHWORDS : MORTGAGES - mortgage given by elderly father over home to secure loan for daughter's business - default under mortgage - claim for possession and to recover money payable under mortgage - judgment given in favour of Plaintiffs against daughter under guarantee - claim by father for relief under Contracts Review Act 1980 by way of indemnity from daughter - relief granted to father

Contracts Review Act 1980 Law Reform (Miscellaneous Provisions) Act 1946 LEGISLATION CITED : Real Property Act 1900 Protected Estates Act 1983 Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005

AGC (Advances) Limited v West (1984) 5 NSWLR 590 R v Doney (2001) 126 A Crim R 271 CASES CITED : Jeans v Cleary [2006] NSWSC 647 Jones v Dunkel (1959) 101 CLR 298 Burke v LFOT Pty Limited (2002) 209 CLR 282

Keith Arthur Higgs (First Plaintiff) Elizabeth Helen Higgs (Second Plaintiff) Elise Faye Morton (Third Plaintiff) Phillip Smith (Fourth Plaintiff) Benjamin Donald Cluny McPherson (Fifth Plaintiff) PARTIES : Louise Zara McPherson (Sixth Plaintiff) Cassy Atlas (Seventh Plaintiff) John Matthew James Thompson - by his Tutor The Protective Commissioner (First Defendant) Gaille Therese Jang (Second Defendant) Joe A Michael (Third Defendant) David Beale (Fourth Defendant)