Permanent Trustee Company Limited v Gillian O'Donnell Permanent Trustee Company Limited v Di Benedetto Tonto Home Loans Australia Pty Ltd v Tavares [2009] NSWSC 902

New South Wales Supreme Court

CITATION : Permanent Trustee Company Limited v Gillian O'Donnell Permanent Trustee Company Limited v Di Benedetto Tonto Home Loans Australia Pty Ltd v Tavares [2009] NSWSC 902

HEARING DATE(S) : 23 March 2009 ; 24 March 2009; 26 March 2009; 27 March 2009; 30 March 2009; 31 March 2009; 1April; 6 April 2009; 7 April 2009; 8 April 2009; 21 April 2009

JUDGMENT DATE : 4 September 2009

JUDGMENT OF : Price J at 1

DECISION : See paragraphs 446 447 and 448

CATCHWORDS : CONTRACTS - loan contracts and mortgages - Lo Doc loans - fraud of finance broker and property developer - borrowers persuaded to sign blank or partially completed loan application forms - borrowers persuaded not to obtain independent legal advice - carelessness of borrowers - loans approved on fraudulent financial information inserted by finance broker without knowledge of borrowers - purported use of loan funds for joint ventures - ASIC intervention - public interest - lending guidelines - panel lawyer's guidelines - mortgage insurance - special condition as to cash out - prudent lending practice - PRINCIPAL and AGENT - conflict of interest - whether broker acting for borrowers or lender - Introduction Deed - terms of agreement - true nature of relationship - attribution of knowledge of broker to mortgage manager and lender - asset lending - conduct of business by mortgage manager - risk of serious fraud to borrowers - UNJUST CONTRACTS - Contracts Review Act - consideration of relevant circumstances - lenders guidelines not followed - whether unjust asset lending - consideration of public interest - exercise of discretion.

Australian Securities and Investments Commission Act 2001 (Cth) Contracts Review Act 1980 s 7(1)(d) LEGISLATION CITED : Fair Trading Act 1987 Trade Practices Act 1974 Real Property Act 1900 s 57(2)(b)