NEWTON v EQUITITRUST LIMITED [2010] NSWSC 1075

New South Wales Supreme Court

CITATION : NEWTON v EQUITITRUST LIMITED [2010] NSWSC 1075

HEARING DATE(S) : Wednesday 29 September 2010

JUDGMENT DATE : 1 October 2010

JURISDICTION : Common Law

JUDGMENT OF : Hall J at 1

DECISION : The summons is dismissed

CATCHWORDS : CONTRACTS – loan agreements and registered mortgage – proceedings by lender against borrower for order for possession and a monetary order – consent orders made in favour of plaintiff/lender on basis of settlement agreement – Contracts Review Act 1980 – subsequent application under Act to set aside consent orders and for leave to file amended defence and cross-claim raising a case of unconscionability of the loan agreements – loans advanced by plaintiff were development project funds for a property redevelopment of the subject property – whether borrower had an arguable case that she was in a position of special disadvantage as at the time of the loans – whether loans amounted to asset lending – a finding open that the settlement agreement was "unjust" under the Act having regard to medical and other evidence – however no basis for an order under s.7 setting aside the consent order s- no arguable case established of a case based on unconscionability in accordance with general law principles

LEGISLATION CITED : Contracts Review Act 1980

Commercial Bank of Australia Limited v Amadio (1988) 151 CLR 447 Elkofairi v Permanent Trustee Co Limited [2002] NSWCA 413 CASES CITED : Harvey v Phillips (1956) 94 CLR 235 Perpetual Trustee Company v Khoshaba [2006] NSWCA 41 Riz v Perpetual Trustee Australia Limited (2007) ANZ Conv R 615 State Bank of NSW v Drury (Ireland J, unreported 4 April 1996