Westpac Banking Corporation v Velingos [2011] NSWSC 607

Supreme Court New South Wales

Medium Neutral Citation: Westpac Banking Corporation v Velingos [2011] NSWSC 607 Hearing dates: 28 February 2011, 1 March 2011, 2 March 2011 Decision date: 22 June 2011 Jurisdiction: Civil Before: Schmidt J Decision: For the reasons given, I am satisfied that the cross-claim must be dismissed and the orders sought by Westpac made. The parties wish to be heard on the question of costs. I will make formal orders, once costs have been determined. Catchwords: CONTRACTS - cross-claims - Contracts Review Act 1980 - whether loan and mortgage unjust - no independent legal advice - elderly borrowers with limited command of English and no ability themselves to repay borrowings - experienced borrowers who had previously received legal advice and who understood and consented to increased borrowings - borrowers also appreciated and consented to risks involved in transaction - whether borrowers had the benefit of the money in issue - part of borrowings used to repay another loan - contract not unjust - whether relief would be granted if contract found unjust - relief would be refused - Australian Securities and Investments Commission Act 2001 - whether brokers engaged in misleading or deceptive conduct - passing on false information - implied disclaimer - misleading and deceptive conduct not established - whether brokers engaged in unconscionable conduct - not ensuring borrowers obtained independent legal advice - unconscionable conduct not established - loss claimed not established - cross-claims dismissed Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth) Contracts Review Act 1980 Evidence Act 1995 Cases Cited: Bridgewater v Leahy [1998] HCA 66; (1998) 194 CLR 457 Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592 Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447 Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Elkofairi v Permanent Trustee Co Ltd [2002] NSWCA 413 Gardam v George Wills & Co Ltd (1988) 82 ALR 415 Jones v Dunkel (1959) 101 CLR 298 Kowalczuk v Accom Finance Pty Ltd [2008] NSWCA 343 Orix Australia Corp Ltd v Peter Donnelly Automotive Pty Ltd [2007] NSWSC 977 Permanent Mortgages Pty Ltd v Cook [2006] NSWSC 1104 Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41 Spina v Permanent Custodians Ltd [2009] NSWCA 206 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661 Category: Principal judgment Parties: Westpac Banking Corporation Limited (Plaintiff/Third Cross-Defendant) Ikey Velingos (First Defendant) Konstandinos Velingos (Second Defendant/First Cross-Claimant) Helen Velingos (Third Defendant/Second Cross-Claimant) Ali Ghezelbash (First Cross-Defendant) United Mortgage Pty Ltd (Second Cross-Defendant) Representation: Counsel: Mr MBJ Lee with Mr J Hyde-Page (Plaintiff/Third Cross-Defendant) Mr A Crossland (Second and Third Defendants/Cross-Claimants) Mr DA McLure (First and Second Cross-Defendants) Solicitors: Henry Davis York (Plaintiff/Third Cross-Defendant) Craig Milne & Co (Second and Third Defendants/First and Second Cross-Claimants) Lander & Rogers Lawyers (First and Second Cross-Defendants) File Number(s): 2008/11810