Citigroup v Azar [2011] NSWSC 95

Supreme Court New South Wales

Medium Neutral Citation: Citigroup v Azar [2011] NSWSC 95 Hearing dates: 8/2/11, 9/2/11 and 10/2/11 Decision date: 02 March 2011 Before: Acting Justice Barr Decision: See paragraphs [82] and [83] of the judgment. Catchwords: Possession of land - loan on mortgage - whether unjust and unconscionable. Legislation Cited: Consumer Credit Code Contracts Review Act 1980 Fair Trading Act 1987 Real Property Act 1900 Trade Practices Act 1974 (Commonwealth) Cases Cited: Elkofari v Perpetual Trustee Co Limited [2002] NSWCA 413 Petelin v Cullen [1975] HCA 24; (1975) 132 CLR 355 Ford by his Tutor Watkinson v Perpetual Trustees Victoria Limited [2009] NSWCA 186; (2009) 75 NSWLR 42 Perpetual Trustee Co Limited v Khoshaba 2006 NSWCA 41 Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52; (2004) 219 CLR 165 Category: Principal judgment Parties: Citigroup Pty Ltd (Plaintiff) Aziz Azar (First Defendant) Ovsanna Azar (Second Defendant) Representation: Counsel: P T Newton D C Eardley Solicitors: Norton Rose Australia (Plaintiff) Downeys Lawyers (Defendants) File Number(s): 2009/29622

Judgment 1HIS HONOUR: The plaintiff, Citigroup Pty Limited, seeks an order for possession of land at 167 Blaxcell Street Granville (the land) and consequential orders. The defendants, Aziz Azar and Ovsanna Azar, are the registered proprietors of the land. The plaintiff relies on the defendants' failure to abide by the conditions of a loan secured by a mortgage granted over the land which, it says, entitles it to exercise its power of sale and to recover moneys due under the loan. The defendants deny executing any mortgage in favour of the plaintiff and deny any obligation to repay money to the plaintiff. In a cross-claim they seek orders against the plaintiff granting them relief under the Trade Practices Act 1974 (Commonwealth), the Fair Trading Act 1987, the Contracts Review Act 1980 and the Consumer Credit Code . They seek a declaration that the mortgage is unjust and void or a declaration that the loan agreement is unconscionable or an order setting aside the loan agreement and the mortgage. They seek damages, interest and costs. 2The defendants are a married couple. One of their children is an adult son, Steven Azar. Steven Azar was at all material times director of Azar Financial Services Pty Limited. Until the commencement of the hearing the defendants were pursuing cross-claims against Steven Azar and Azar Financial Services Pty Limited, but counsel abandoned those claims early in the hearing. The defendants maintain their cross-claim against the plaintiff.