Mizzi v Reliance Financial Services Pty Ltd & Ors [2007] NSWSC 37

New South Wales Supreme Court

CITATION : Mizzi v Reliance Financial Services Pty Ltd & Ors [2007] NSWSC 37 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 14, 15, 18 December 2006

JUDGMENT DATE : 15 February 2007

JURISDICTION : Equity Division

JUDGMENT OF : Brereton J

DECISION : Declare that upon proper construction of agreement and in events which have happened, the plaintiff was released from any obligation which she owed to the first defendant in respect of moneys advanced by first defendant to her, and in particular all obligations which she had under Loan Agreement and Mortgage. Order that first defendant execute and deliver to plaintiff discharge of mortgage and certificate of title.

CATCHWORDS : CONTRACTS – Unjust contracts – where mortgage of pensioner's sole asset to secure refinance of earlier mortgage in default was an unjust contract - whether as a matter of discretion relief should be granted – EQUITY – Unconscionable dealings – whether mortgage was unconscionable dealing - CONTRACT – Termination – accrued rights where mortgagee had agreed with mortgagor's son to release mortgagee upon provision by son of alternative security – where alternative security provided but other obligations of son not performed - whether mortgagee obliged to release mortgagor – accrued contractual right before termination - Privity – whether release enforceable at the suit of mortgagee - whether trust of benefit of contractual promise in favour of a third party – where son obliged in contract and in equity to procure release. - COSTS – where plaintiff ultimately succeeds by reason of success on one issue but fails on issue occupying much of trial.

LEGISLATION CITED : (NSW) Contracts Review Act 1980, ss 7, 9