Banksia Mortgages Limited v Croker and Ors [2010] NSWSC 1447

New South Wales Supreme Court

CITATION : Banksia Mortgages Limited v Croker and Ors [2010] NSWSC 1447

HEARING DATE(S) : 8 June 2010, 21 October, 22 October, 28 October 2010

JUDGMENT DATE : 17 December 2010

JUDGMENT OF : Schmidt J at 1

DECISION : Relief sought by the defendants in their cross claim refused. The usual order as to costs would that they follow the event. In the event that the parties are in disagreement as to costs, they should approach.

CATCHWORDS : CONTRACTS - unjust contracts - mortgage and loan contracts - cross claim - two mortgage loans - disclosed purpose to refinance existing borrowings and to make off farm investment - actual purpose differed in part - failure to disclose changed investment strategy and other alterations in purpose - whether plaintiff was aware or failed to take steps to ensure serviceability of first loan - not established - whether plaintiff failed to follow lending guidelines - not established - whether lender engaged in asset lending -not established - whether defendants were inexperienced - not established - whether defendants were not sophisticated borrowers - not established - whether lender failed to establish false information supplied by alleged fraudster- whether lender was aware of fraudster - whether contract was unjust - section 7 of the Contracts Review Act - not established - defendants' conduct - defendants failed to disclose investment decisions to plaintiff - money borrowed for high risk investment - defendants were legally advised against investment - whether plaintiff acted unconscionably - not established - whether defendants' position was result of plaintiff's conduct - not established - loan contract not unjust - relief sought in cross claim refused - costs