Bank of Western Australia Ltd v Tannous [2010] NSWSC 1319

New South Wales Supreme Court

CITATION : Bank of Western Australia Ltd v Tannous [2010] NSWSC 1319

HEARING DATE(S) : 12 November 2010

JUDGMENT DATE : 3 December 2010

JURISDICTION : POSSESSION LIST

JUDGMENT OF : Davies J

DECISION : (1) Judgment for the Second Cross-Defendant on the First Cross-Claim dated 11 August 2009. (2) Judgment for the First Cross-Defendant on the Second Cross-Claim dated 1 July 2010. (3) Judgment for the Second and Third Cross-Defendants on the Third Cross-Claim (wrongly entitled First Cross-Claim) dated 1 July 2010. (4) The Second Defendant/Cross-Claimant is to pay the costs of the Second Cross-Defendant to the First Cross-Claim and the First Cross-Defendant to the Second Cross-Claim. (5) The First Defendant/Cross-Claimant is to pay the Second and Third Cross-Defendants costs of the Third Cross-Claim.

CATCHWORDS : CONTRACTS - unjust contracts - Contracts Review Act 1980 - advance used to pay out existing mortgage debt - prior mortgage unjust - whether prior mortgagee should be joined to proceedings - whether justiciable issue between borrowers and prior mortgagee - unjustness of prior mortgage determined as part of relief granted in respect of unjustness of later contract

Consumer Credit Code LEGISLATION CITED : Contracts Review Act 1980 Credit Act 1984 Uniform Civil Procedure Rules

CATEGORY : Principal judgment

Collier v Morlend Finance Corporation (Victoria) Pty Ltd (1989) 6 BPR 13,337; (1989) NSW ConvR 55-473 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 CASES CITED : Mizzi v Reliance Financial Services Pty Ltd [2007] NSWSC 37 Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41 St George Bank Ltd v Trimarchi [2004] NSWCA 120