Fast Fix Loans Pty Limited v Mladenko Samardzic and Anor [2011] NSWSC 19

Supreme Court New South Wales

Medium Neutral Citation: Fast Fix Loans Pty Limited v Mladenko Samardzic and Anor [2011] NSWSC 19 Hearing dates: 22/11/2010, 23/11/2011, 6/12/2011 Decision date: 04 February 2011 Jurisdiction: Common Law Before: Hoeben J Decision: Declaration that the deed of loan between Fast Fix Loans Pty Limited, TT's Management Group Pty Limited, Milan Samardic, Mladenko Samardzic and Dragica Samardzic, dated 22 February 2008 (deed of loan) is unjust within the meaning of s4 of the Contracts Review Act 1980 (CRA) insofar as it relates to Mladenko Samardzic and Dragica Samardzic. The deed of loan is varied to remove Mladenko Samardzic and Dragica Samardzic as parties. A declaration that the deed of variation of loan between Fast Fix Loans Pty Limited, TT's Management Group Pty Limited, Milan Samardic, Mladenko Samardzic and Dragica Samardzic (deed of variation of loan) is unjust within the meaning of s4 of the CRA insofar as it relates to Mladenko Samardzic and Dragica Samardzic. The deed of variation of loan is varied to remove Mladenko Samardzic and Dragica Samardzic as parties. Pursuant to s7(1)(d) of the CRA Fast Fix Loans Pty Limited is to do all things necessary, including the signing and filing of documents but not limited thereto, to discharge registered mortgage No AD789081 over the property located at 54 Boardman Road, Bowral being the land contained in Certificate of Title Folio Identifier 27/1052316. Fast Fix Loans Pty Limited is to pay the costs of Mladenko Samardzic and Dragica Samardzic incurred in these proceedings. Catchwords: Claim for possession of land by mortgagee/lender - elderly parents mortgage their home to secure borrowings by son and his company - defence of undue influence and cross-claim under Contracts Review Act 1980 - Application of Contracts Review Act - asset lending - improvident transaction from parents' point of view - failure by mortgagee to make any inquiries as to financial circumstances of parents - effect of explanation by solicitor of loan documents - loan agreement unjust as it affected parents - whether Court should exercise its discretion to apply Contracts Review Act in favour of parents. Legislation Cited: Contracts Review Act 1980 Conveyancing Act 1919 Real Property Act 1900 Cases Cited: Baltic Shipping Co v Dillon ("The Mikhail Lermontov") (1991) 22 NSWLR 1 Beneficial Finance Corporation v Karavas (1991) NSWLR 256 per Meagher JA at 277 Elkofairi v Perpetual Trustee Co Ltd [2002] NSWCA 413; (2003) 11 BPR 20,841 at [57]-[59] Hraiki v Beljon [2008] NSWSC 775 per McDougall J at [35] Kowalczuk v Accom Finance [2008] NSWCA 343 Melverton v Commonwealth Development Bank of Australia (1989) NSW Conv R 55-484 National Australia Bank v Hall (1993) NSW Conv R 55-684 Pasternacki & Anor v Correy [2000] NSWCA 333, [2001] ANZ Conv R Cases 240 Patrick John Ford by his tutor Beatrice Anne Watkinson v Perpetual Trustees Vic Ltd [2009] NSW 186 Perpetual Trustee Company Limited v Khoshaba [2006] NSWCA 41 Spina v Permanent Custodians Ltd [2009] NSWCA 206 Reisch v Commonwealth Bank of Australia & Ors (Simos J) (NSW Supreme Court, 13 March 1998, unreported) Category: Principal judgment Parties: Fast Fix Loans Pty Limited (Plaintiff) Mladenko Samarzic (First Defendant) Dragica Samadzic (Second Defendant) Mladenko Samarzic and Dragica Samardzic (Cross-Claimants) Representation: Counsel: Mr M Thompson (Plaintiff) Mr C Cassimatis (First and Second Defendants and Cross-Claimants) Solicitors: Greenstein & Associates (Plaintiff) File Number(s): 2010/34211