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 Judgment 1The proceedings were commenced by statement of claim filed in April 2008. The plaintiff, Westpac Banking Corporation Limited ('Westpac'), sought possession of property situated at Marrickville ('the property') and an order that the second and third defendants, Mr and Mrs Velingos, pay it $677,971.03 plus interest and costs. 2The three defendants were the registered proprietors of the property. It was Mr and Mrs Velingos' home. The first defendant, Ikey Velingos, is an undischarged bankrupt. In April 2005, they obtained a loan from Westpac secured by a mortgage granted over the property. Part of the loan, some $536,471.96, was used to repay borrowings which the defendants had earlier obtained from the National Australia Bank ('the NAB borrowings'). The NAB borrowings had also been secured by a mortgage over the property. The balance of the Westpac loan, some $140,000, was intended to be used by Ikey Velingos for investment purposes. The Westpac loan went into default in July 2007. 3In July 2010, summary judgment was entered in favour of the plaintiff and an order was made in its favour in the sum of $355,333. That figure represented two thirds of the amount of the NAB borrowings. The house was sold. By further amended statement of claim filed in February 2011, Westpac pressed an order in respect of the balance of the amount used to repay the NAB borrowings, including interest, as well as its costs, charges and expenses, calculated in accordance with the mortgage. 4There is no dispute in relation to the sum of $355,333. Westpac does not pursue Mr and Mrs Velingos in relation to the additional $140,000 borrowed for Ikey Velingos' investment purposes. That concession did not resolve the parties' dispute. Mr and Mrs Velingos oppose the further orders which Westpac presses. 5By a second further amended cross-claim filed on 1 March 2011, Mr and Mrs Velingos sought orders varying the Westpac loan and mortgage, in order to reduce the amount of the borrowings secured over the property, as well as other orders. In the event that the cross-claim brought against Westpac failed and orders were made in its favour, they pressed an order for damages against the first cross-defendant, Ali Ghezelbash and the second cross-defendant, United Mortgage Pty Limited ('United Mortgage'). Mr Ghezelbash is a director of United Mortgage which had acted for Mr and Mrs Velingos and Ikey Velingos as a mortgage broker on the Westpac loan. 6The orders sought against Westpac were pressed pursuant to s 7 of the Contracts Review Act 1980. The order for damages sought against Mr Ghezelbash and United Mortgage were pressed pursuant to s 12GF of the Australian Securities and Investments Commission Act 2001 (Cth) ('ASIC Act'). 7Mr Ghezelbash and United Mortgage defended the case brought against them and also relied on ss 12CA, 12CB, 12DA, 12GP and 12GR of the ASIC Act , in relation to the responsibility of Westpac, Ikey Velingos and Mr and Mrs Velingos themselves, for any loss or damage which they had suffered. 8After further consideration during the course of the hearing, the orders finally pressed by Mr and Mrs Velingos were: As against Westpac I. An order pursuant to s. 7(1)(c) of the Contracts Review Act ( CRA ) that the loan and mortgage entered into between Westpac and the cross claimants and the third defendant ( Ikey Velingos ) on or about 18 April 2005 ( the loan and mortgage ) be varied so that (calculated as at 1 March 2011): a. the total amount owing by the cross claimants $466,337.24 , calculated thus: i. $466,37.24 being the sum of $357,647.96 and $108,689.28 ii. $357,647.96 being 2/3 rd of what Westpac identifies as the NAB refinance amount ($536,471.96); plus iii. $108,689.28 being 2/3 rd of what Westpac identifies as the interest on the refinance amount calculated to 1 March 2011 ($163,033.92). b. The total amount that Ikey Velingos owes is $324,253.15, calculated thus: i. The sum of $178,823.98 and $54,344.64 and $91,084.53 ii. $178,823.98 being 2/3 rd of the refinance amount ($536,471.96) iii. $54,344.64 being 1/3 rd of the interest on the refinance amount calculated to 1 March 2011 ($163,033,92) iv. $91,084.53 being 1/3 rd of $275,413.60; v. $275,413.60 being the difference between $974,919.48 being the net sale proceeds available to Westpac (as per the letter from Westpac's solicitors to the solicitors for the cross claimants - Exhibit 'A'); and $699,505.88 being sum of the NAB refinance amount ($536,471.96) and the interest on that refinance amount ($163,033.92) 2. Consequent upon Order 1, that Westpac transfer to the cross claimants $184,329.09 , calculated thus: a. $184,329.09 being $974,919.48 (the net sale proceeds available to Westpac) minus $790,590.39; b. $790,590.39 being the sum of what the cross claimants owe under the varied loan ($466,337.24) and what lkey Velingos owes under the varied loan. ( $324,253.15 ). As against United Mortgage and Mr Ghezelbash 3. In the event of a verdict for Westpac on the cross claim, United Mortgage and Mr Ghezelbash to pay the cross claimants $339,054.82 , that sum to be calculated thus: a. $339,054.82 is 2/3 rd of $508,582.24; b. $508,582.24 is $974,919.48 (the net sale proceeds) minus $466,337.24; c. $466,337.24 is 2/3 rd (the cross claimants share) of the refinance amount ($536,471.96) and interest on the refinance amount ($163,033.92). 4. In the event of a verdict for Westpac on the cross claim, and in the event that Order 3 is not made, United Mortgage and Mr Ghezelbash to pay the cross claimants $183,609.06 a. $183,609.06 being 2/3 rd of $275,413.59; b. $275,413.59 being the difference between the $974,919.48 (the net proceeds of sale available to Westpac) and $699,505.88. c. $699,505.88 being the refinance amount ($536,471.96) and interest on that amount ($163,033.92). 5. In the event of the cross claimants succeeding against Westpac and Order 2 being made, United Mortgage and Mr Ghezelbash to pay the cross claimants $216,622.12 being: a. $216,622.12 being 2/3 rd of $324,933.18 b. $324,933.18 being the difference between $974,919.48 (the net proceeds of sale available to Westpac) and $466,377.24 (the cross claimants share of the refinance amount and interest on the refinance amount) minus $183,609.06 c. $183,609.06 being the amount in Order 2. 6. In the event of the cross claimants succeeding against Westpac but Order 5 not being made, United Mortgage and Mr Ghezelbash to pay the cross claimants $61,203.02 a. $61,203.02 being 2/3 rd of $91,804.53 b. $91,804.53 being the difference between the $974,919.48 (the net proceeds of sale available to Westpac) and $699,505.88 (the whole refinance amount plus interest) minus the $183,609; c. $183,609.06 being the amount in Order 2." The cross-claim 9Given the way in which the case unfolded, it is necessary to refer in a little detail to the claims advanced by Mr and Mrs Velingos by way of their second further amended cross-claim. 10The cross-claim was based in part on an allegation that the former lender, NAB, knew or ought to have known or suspected in March 2001 that it was not intended to use the loan it then provided to Mr and Mrs Velingos and Ikey Velingos, for the benefit of Mr and Mrs Velingos, but rather for that of Ikey Velingos and his wife Nicky Velingos. It was claimed that Mr and Mrs Velingos spoke English poorly; they had little understanding of financial matters; they were induced by Ikey Velingos to sign the NAB loan and mortgage documents; and that they did not have an adequate understanding of this transaction, without having received independent legal or other advice. The result was that they did not understand the risks involved in the NAB loan to which they were a party. 11It was also claimed that Mr and Mrs Velingos could not read the Westpac loan and mortgage documents which they entered in 2005, to a level adequate to understand them; and that they had again relied heavily on their son Ikey Velingos to advise them. They could not judge for themselves whether this transaction was in their interests. It was never intended that they would receive the benefit of the moneys advanced by Westpac. They were volunteers who did not understand that they had an obligation to repay the loan. Their son initiated the transaction and induced them to sign the loan and mortgage documents; and they had acted under his guidance and advice. This had deprived them of their ability to act in their own interests, in circumstances where the documents had not been adequately explained to them and they could not adequately understand them. They had no knowledge of the amount borrowed in excess of the NAB repayment and did not know that in the event of default, they might have an obligation to repay those borrowings, which were to be used for their son's benefit. They had derived no benefit from the borrowings. 12It was claimed that all of these matters were known to each of the cross-defendants and that they also knew that Ikey Velingos was actively pursuing other borrowings, in addition to those borrowed with his parents on security of their home. It was also alleged that Westpac had breached its own guidelines and policies, in lending to Mr and Mrs Velingos. It had also failed to meet the requirements of the Code of Banking Practice. 13As to Mr Ghezelbash and United Mortgage, it was alleged that they were dealing in a financial product and providing a financial service to both Mr and Mrs Velingos, in respect of which they had engaged in misleading and deceptive conduct. They had knowingly supplied false information to Westpac, grossly overstating the incomes of Ikey and Nicky Velingos and Xenephon Pty Limited. They had also acted unconscionably in a variety of ways specified. 14After the case for Mr and Mrs Velingos was opened at the hearing, the other parties complained that serious departures from the case advanced in the cross-claim had been outlined. That was denied by Mr and Mrs Velingos' counsel, but these complaints were later reiterated. 15By way of response to these repeated complaints, it was finally clarified for Mr and Mrs Velingos that they did not allege that Westpac had engaged in asset lending; nor that it had made an imprudent loan; nor was it alleged that there had been any fraud by any of the defendants; or any conspiracy between Mr Ghezelbash or Ikey Velingos in order to disadvantage Mr and Mrs Velingos. Issues 16There were disputes both as to factual and legal issues. They were identified by the parties as: "Disputes as to facts The cross claimants ( the Velingoses ) say, and it is disputed by the plaintiff ( Westpac ) and by the first and second cross defendants ( Mr Ghezelbash and United Mortgage Pty Limited ), that: 1 In assisting the first defendant, Ikey, with his loan of $160,000 in about 1993, the second and third defendants, they: (a) Received no legal advice or any independent advice at all; (b) Knew no more about the transaction than that they were involved in the loan because they owned a house (though they did not know how that house was involved); (c) Did not know or believe that because they had gotten involved in the transaction they might be responsible for the loan or that the house might be at risk; (d) Did not know what the interest rate for the loan was. 2 In signing the transfer that made by the first defendant, Ikey Velingos, a co-owner of the property at 85 Malakoff Street, Marrickville ( the Property ), the Velingoses: (a) Received no legal advice or independent advice of any kind; (b) Were acting entirely on an approach and a request made by Ikey Velingos; (c) Relied on what Ikey Velingos said, namely, that should become a co-owner because "that means [he could] be responsible for the loan repayments " and that they would "not have any responsibility for the loan any more." 3 In signing documents to become co-borrowers in a loan from the Homeside / NAB for the sum of $340,000, the Velingoses: (a) Received no legal advice or independent advice of any kind; (b) Did not know that they had borrowed any money; (c) Knew that the reason they were signing the documents was so their son could borrow money; (d) Knew that they were involved in the transaction because they had a house but did not know how their house was involved; (e) Did not know that because they were involved with the transaction they might be responsible or their house might be at risk; (f) Did not know how much Ikey (to their minds) was borrowing. 4 In signing documents to effect the loan from Westpac (that is, in signing the application, the loan agreement and the mortgage), the Velingoses: (a) Were acting on Ikey's representation that: (i) he wanted to borrow $200,000 to buy a house; (ii) That they had to sign because they were co-owners of the Property; (b) Did not know they were borrowing money; (c) Did not understand what obligations they would have in relation to Ikey's borrowings; (d) Did not receive any legal advice or independent advice of any kind; (e) Knew that they were involved in the transaction because they had a house, but did not know how their house was involved; (f) Did not know that because they were involved with the transaction they might be responsible or their house might be at risk; (g) Did not properly know the significance and meaning of the documents they were signing; (h) Were unable to judge for themselves whether the transaction with Westpac was in their best interests; (i) Were deprived by Ikey of the ability to look after their own interests; (j) Had no specific knowledge of the use to which Ikey was putting that part of the Westpac loan money in excess of the NAB refinance amount; 5 At the time of the subject transactions, each of the cross defendants knew or should reasonably have known or should reasonably have suspected or did suspect that: (a) The Velingoses were unable to judge for themselves whether the transaction was in their best interests; (b) The Velingoses rely heavily on their sons in communicating with others, including in respect of any business dealings; (c) The Velingoses have little understanding of English and little understanding of business affairs; (d) The Velingoses could not read the loan or mortgage documents to a level adequate to understand them; (e) Ikey induced the Velingoses to sign the loan and mortgage documents at issue in these proceedings and was the dominant party among the co-borrowers; (f) The Velingoses entered into the transaction under the guidance of Ikey; (g) The Velingoses were deprived by Ikey of the ability to look after their own interests; (h) The Velingoses had no specific knowledge of the purpose to which Ikey would put that part of the Westpac advance in excess of the refinance amount (i.e., in excess of $533,000); (i) The Velingoses did not know and it was never effectively explained to them (and certainly not in a language they adequately understood) that they might have an obligation to repay the loan; (j) The transaction had been preceded by at least one other loan ( the NAB loan ) for which Ikey had received all the benefit and for which the Velingoses had provided all the security. 6 Westpac knew or should reasonably have known or should reasonably have suspected or did suspect that the Velingoses did not understand the meaning and significance of the mortgage and loan documents they signed in respect of the NAB loan or the extension of that loan. Disputes as to the law 7 The Velignoses say, and it is disputed by both the cross defendants, that: (a) The defendants/cross claimants laboured under a special disadvantage; (b) The loan and mortgage was unjust for the purposes of s.9 of the Contracts Review Act 1980 and/or whether any relief ought to be granted in any event; (c) In submitting, with the Westpac loan application, tax returns and financial statements of Ikey Velingos and his company Xenephon Pty Limited and of Nicky Velingos that were false and grossly overstated income, the conduct of Mr Ghezelbash and United Mortgages was likely to mislead or deceive; (d) In the event that the Velingoses suffer a loss because of their execution of the Westpac loan and mortgage documents (that is, if their claim for relief against Westpac were to fail), that is a loss for which Mr Ghezelbash and United Mortgages should pay damages pursuant to s.12GF of the Australian Securities and Investments Commission Act 2001 ( ASIC Act ); (e) In supplying financial (broking) services to the Velingoses in the manner they did, Mr Ghezelbash and United Mortgages acted unconscionably and are liable under the ASIC Act for any loss the Velingoses suffer as a result of executing the Westpac loan and mortgage documents; (f) Whether any liability of Mr Ghezelbash and United Mortgage should be limited, pursuant to s 12GR of the ASIC Act, having regard to the extent of the responsibility of Ikey and Westpac; (g) Whether any damages payable to the Velingoses should be reduced pursuant to s 12GF of the ASIC Act having regard to their share of the responsibility for the loss; (h) In calculating the amount of the Velingoses' loss, it is necessary to discount only the sum of $355,333, that is, a sum equal to 2/3 of the amount paid from the Westpac loan to NAB in discharge of the borrowings of Ikey and the Velingoses from NAB. Evidence relevant to the above disputes The primary evidence that the Velingoses rely on in proving, or in contending for, the above facts and matters of law in dispute are the affidavits they have sworn in these proceedings. Further, in making the claim that the subject transactions were unjust and the conduct of Mr Ghezelbash and United Mortgages unconscionable, the Velingoses rely on the whole of the circumstances of the loan, including and especially the loan application (Annexure A of the affidavit of Mr Ghezelbash sworn 4 March 2010). Mr Ghezelbash and United Mortgage rely on the affidavits of Ali Ghezelbash sworn 4 March 2010 and 15 September 2010 and the affidavit of Azita Ghezelbash sworn 15 September 2010." The evidence called 17The evidence given by Mr and Mrs Velingos considerably undermined the case which they advanced by their cross-claim. 18Mrs Velingos was first called to give evidence. She had sworn three affidavits which were tendered. Her evidence was that she could speak and understand simple English, but could not read English. She gave her evidence with the assistance of an interpreter. Mr Velingos had similar assistance, given his limited command of English, which he also cannot read. 19Mrs Velingos' evidence in cross-examination explained how it was that parts of her affidavits and those sworn by her husband came to be in relevantly identical terms, in certain important respects. The affidavits were the result of a process whereby Mr and Mrs Velingos met together with their solicitor and gave him instructions. The affidavits were then prepared, translated and later executed. 20Mrs Velingos' evidence also showed that her affidavits did not reflect the true position. Contrary to the account which she there gave as to certain conversations, including conversations with her son in 1993, she in fact had no memory at all of aspects of the conversations recounted in her affidavits. Her oral evidence also contradicted her affidavit evidence in a number of important respects. It became apparent that her affidavits had been prepared in an entirely unsatisfactory way. They did not reflect Mrs Velingos' true recollections of various matters dealt with or her understanding of matters to which she deposed. 21When Mr Velingos was called there was an objection to the tender of his affidavits. The tender was withdrawn and his evidence in chief was called orally. Mr Velingos' evidence corroborated much of Mrs Velingos' evidence in cross-examination. 22While their oral evidence was not entirely forthcoming in every respect, in cross-examination, Mr and Mrs Velingos each made significant concessions contrary to their interests. Their oral evidence impressed me as having largely been truthfully given. It significantly undermined the case which they advanced in the cross-claim. 23No evidence was called from Ikey Velingos, or from Ms Dorelle Malpas, the Westpac officer who attended on Mr and Mrs Velingos and Ikey Velingos on 18 April 2005, when various loan documents which she had prepared were executed at Mr Ghezelbash's office. Nor was evidence called from either of Mr and Mrs Velingos' other children, who were also present that day, at least for a part of the meeting. 24There was an issue between Mr and Mrs Velingos and Mr Ghezelbash as to whether or not Ms Malpas had explained certain documents at the meeting and whether or not Ikey Velingos had then translated what she said to his parents. Ms Malpas was a witness Westpac could plainly have called in its case. She had also been subpoenaed by Mr and Mrs Velingos. They, too, could have called her. Her evidence was relevant to their case against Mr Ghezelbash and United Mortgage. 25Whether Jones v Dunkel (1959) 101 CLR 298 inferences flow from the failure to call evidence from these obvious witnesses arises for consideration. Questions as to the failure to call evidence in chief from Mr and Mrs Velingos, as to obvious matters, also arises to be considered, particularly given how their evidence in cross-examination undermined the claims advanced in their cross-claim. In Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418, Handley JA observed: "There appears to be no Australian authority which extends the principles of Jones v Dunkel to a case where a party fails to ask questions of a witness in chief. However I can see no reason why those principles should not apply when a party by failing to examine a witness in chief on some topic, indicates "as the most natural inference that the party fears to do so". This fear is then "some evidence" that such examination in chief "would have exposed facts unfavourable to the party": see Jones v Dunkel (at 320-321) per Windeyer J. Moreover in Ex parte Harper; Re Rosenfield [1964-5] NSWR 58 at 62, Asprey J, citing Marks v Thompson 1 NYS 2d 215 (1937) at 218, held that inferences could not be drawn in favour of a party that called a witness who could have given direct evidence when that party refrained from asking the crucial questions." Mr and Mrs Velingos' understanding of their borrowings 26Mr and Mrs Velingos are Greek immigrants, now aged respectively 72 and 70 years. They are pensioners who it is accepted had no personal capacity to repay the Westpac borrowings, when the loan was obtained. Mr Velingos worked as a labourer after he immigrated to Australia in 1964. His unchallenged evidence was that he has been in receipt of a pension since 1992. 27Mr and Mrs Velingos purchased their home in 1969, with the assistance of a loan from the Bank of New South Wales, secured by a mortgage over their home. This was soon paid off. Their next borrowing in 1975 was in order that renovations could be made to the property. Again this borrowing was soon repaid. There were later further borrowings in 1982 and 1988, all of which were repaid. They were advised about these transactions by their Greek speaking solicitor, Mr Angelos. 28In 1993, Mr and Mrs Velingos borrowed further funds with the assistance of a broker, some $160,000. This was not for their own purposes, but so that they could assist their son Ikey Velingos in a business venture involving a caf. The loan was secured over their home and it was intended that their son would repay this loan. They were not in a position themselves to repay the loan, if their son failed to make the necessary repayments. Mr Angelos explained the transaction to them and advised them against this borrowing. On their evidence there is no question that as a result of his advice, both Mr and Mrs Velingos then understood the risk that they were taking, namely that if the loan was not repaid by their son, they were at risk of losing their home. Despite Mr Angelos' advice, they proceeded because they wanted to help their son. 29In 1994, Mr and Mrs Velingos transferred a one third interest in their property for the sum of $78,000 to Ikey Velingos. Again, Mr Angelos acted for them. Mr and Mrs Velingos sought no further legal advice on any of their later borrowings, but on their evidence they always understood what they risked in entering these transactions. Over time, the borrowings increased, with loans in 1996 from Perpetual Trustees Australia Limited, and in 1998, 2001 and 2003 with further borrowings from NAB. 30In March 2001, Mr and Mrs Velingos borrowed $340,000 from NAB, secured by the property. The amount borrowed was later increased to $536,000. These borrowings were arranged by a broker, Mr Paul Karvades. 31On Mrs Velingos' evidence there can be no question that in 2005 when Westpac was approached, it was with her knowledge. She then understood that borrowings were again to be secured over the property by mortgage and that if they were not repaid by her son, there was a risk that the house would be lost. Since 1993, Mr and Mrs Velingos never themselves had the means to repay what they had borrowed. Mrs Velingos did not concern herself with this risk. She trusted her son and was confident that he would always make the necessary repayments. There were never any problems until Ikey Velingos failed to make payments due on the Westpac loan in 2007. 32Mr Velingos' evidence was that in 1993 he initially refused to borrow money for his son, accepting Mr Angelos' advice. When his son insisted that he needed help, he relented. Thereafter Mr Velingos was also always prepared to help his son when he wanted to increase the borrowings secured over the house, notwithstanding the risk which he knew he and his wife were taking. 33In 2005, Ikey Velingos arranged a refinance of the NAB loan with Westpac with Mr Ghezelbash's assistance as broker. $671,000 was borrowed. After repayment of the NAB borrowings, the remainder was intended to be used by Ikey Velingos for personal investment. Mr and Mrs Velingos were aware of what was proposed and the risks which they ran, but were again content to agree. Again, they did not seek any independent advice. 34Mr Ghezelbash prepared the loan application and obtained a valuation of the property. Ikey Velingos provided him with various information, including identification documents and information about his own financial position. At the same time, Ikey Velingos was seeking to refinance other borrowings in which he was involved with his wife and brothers with Westpac. Mr Ghezelbash acted in relation to all these applications. The application documents were all prepared by Mr Ghezelbash with his wife's assistance. There were various apparent contradictions in the documents so prepared. It was Mr Ghezelbash's case that the applications had been prepared in accordance with guidelines issued by Westpac. The result was, however, that only the loan which the defendants sought was approved by Westpac. The other loan applications were not approved, for reasons which were not revealed on the evidence. 35Ms Malpas prepared the final loan documentation, which was signed at Mr Ghezelbash's offices on 18 April. It was Mr and Mrs Velingos' case that there were inaccuracies with that documentation. There are issues between the parties as to what Ms Malpas told the defendants about the loan documents, and whether or not Ikey Velingos translated what she said at the meeting about the documents for Mr and Mrs Velingos. The loan documentation included advice that they should be seeking independent legal and financial advice. This was advice which Mr and Mrs Velingos claim their son never informed them about. There is no issue that they never sought or obtained such advice. 36What was not finally in issue was that Mr and Mrs Velingos knew that Mr Ghezelbash was acting as their broker; they knew why they went to his office; they knew that the NAB loan was to be refinanced and that there were to be further borrowings from Westpac, for their son Ikey Velingos to use. They did not read or understand the loan documents, but knew what they risked, by securing these borrowings over the house. They were content to rely on their son's ability to repay the borrowings, knowing that if he did not, they would lose the house. The NAB loan and other transactions preceding the Westpac borrowings 37On their evidence, Mr and Mrs Velingos' claims in relation to the NAB loan and the previous transactions in which they were involved, had no foundation. 38Given their own evidence, it is apparent that there was no evidentiary foundation for the case which they advanced in relation to the earlier borrowings. To the contrary, the evidence which they each gave in cross-examination made it clear that while they did not obtain independent legal advice in relation to all of their borrowings and dealings with their son after 1993, they were advised by Mr Angelos about the first loan which they obtained to help their son in 1993 and on the next transaction. 39At that time they were already experienced borrowers. They borrowed a large sum of money on the security of their home, in order to help their son embark on a business venture, despite being advised by Mr Angelos against entering the transaction, given the risks they were running, if their son defaulted on making repayments. 40They were not in a position themselves to meet the repayments, but were prepared to take the risk that their son would make the necessary repayments. Despite Mr Angelos' advice, they not only pursued the initial borrowing, but also later agreed to transfer a share of their property to their son, when they agreed to increase the borrowings secured over their home. Thereafter they never again sought any independent advice in respect of any of the further borrowings obtained for their son's benefit. 41While they did not take legal or other independent advice when they obtained the NAB loans, Mr and Mrs Velingos were aware of the purpose for which the NAB borrowings were obtained and that the money was borrowed on the security of their home. These loans all had their informed consent; they understood that they, together with their son, were borrowing the money; they understood the risk which they were thereby taking, in the event that the loan was not repaid by their son, they themselves still not being in a position to repay the loans. On their own evidence, they had always depended on their son's ability to make loan repayments, but understood that if he failed, they were at risk of losing their house. That was a risk they were prepared to take. They had agreed to increase the borrowings from time to time, including when they took out the NAB loans (and later the Westpac loan), because their son had never had any problems in making repayments and they trusted him. 42Until the Westpac loan went into default in 2007, there were never any problems. All repayments due were met by their son. The NAB borrowings were all repaid in 2005, with a part of the Westpac borrowings then obtained. 43In the face of their own evidence, the complaints which Mr and Mrs Velingos made in their cross-claim in respect of the NAB loan and their previous borrowings and transactions, cannot be accepted as having any foundation. Even though they did not obtain independent advice, the evidence did not establish that Mr and Mrs Velingos were ever misled as to what they had agreed to do for their son in relation to these borrowings; that they were unaware of the risks that they were taking; or that they were disadvantaged, as the result of the trust which they placed in their son. 44Even if a contrary view were available, that Westpac, Mr Ghezelbash or United Mortgage ever became aware of any of the matters on which reliance was placed in respect of the NAB loan or the prior borrowings and transactions in question, was not established. 45That there were existing borrowings from the NAB which Mr and Mrs Velingos and their son sought to refinance, was clearly known. A large part of the Westpac loan was used to repay the NAB debt, with the result that Mr and Mrs Velingos had the benefit of that part of the Westpac borrowings. That the other matters alleged to have been within the knowledge of Westpac, Mr Ghezelbash or United Mortgage, was not established. The allegations made in the cross-claim were contrary to the facts. 46It follows that it must be concluded that these aspects of the claims advanced in the cross-claim were not established by Mr and Mrs Velingos and they must be dismissed. The case against Westpac in relation to the Westpac loan 47The process whereby Ikey Velingos, Mr and Mrs Velingos, Mr Ghezelbash, United Mortgage and Westpac all dealt with each other was that as he had done in the past, Ikey Velingos engaged a broker to act for he and his parents. This was Mr Ghezelbash. Mr Ghezelbash and United Mortgage had an agreement with Westpac, which was approached about this and a number of other loans, which Ikey Velingos and other family members wished to pursue at that time. Under this agreement, Mr Ghezelbash and United Mortgage earned commission on loans to which Westpac agreed and they also had targets to achieve. 48With the assistance of his wife, a number of loan applications were prepared and provided to Westpac by Mr Ghezelbash, on his evidence, in accordance with its guidelines. The applications were prepared on the basis of information provided by Ikey Velingos. The information provided was accurate, except for information which he provided as to certain claimed income, by way of a copy of an unsigned tax return. That information and the document proved to be false. It was not alleged that this was known to Westpac, Mr Ghezelbash or United Mortgage. They were all misled by Ikey Velingos. Nor, indeed, was it known to Mr and Mrs Velingos. 49It was Mr and Mrs Velingos' case that there were various deficiencies in the loan application documents prepared by Mr Ghezelbash. On their face, the applications did give an inconsistent picture of Ikey Velingos' assets and liabilities. The applications provided to Westpac, when considered together, disclosed his various assets and liabilities, but each application did not reveal the same picture. That was because, Mr Ghezelbash explained, of the way in which Westpac's guidelines required part ownership of certain assets to be dealt with, so that in the case of the defendants' application, for example, Ikey Velingos was considered to have a one third share in the property and his parents the rest. There is no reason to doubt Mr Ghezelbash's explanation. Nothing finally turns on this. 50Mr Ghezelbash always dealt with Ms Malpas at Westpac, unless she was away on leave. If Westpac was prepared to lend, Ms Malpas produced a printed Westpac loan application form, which she completed by having regard to the information provided by Mr Ghezelbash. This was provided to the borrower, who executed the application, if the borrower wished to proceed with the loan. 51In this case a number of borrowings were sought by various members of the Velingos family. The loan sought by Mr and Mrs Velingos and Ikey Velingos was approved. It finally proceeded, in accordance with documents Ms Malpas prepared and provided to them. The documents were checked by Mr Ghezelbash, who did not detect a number of inaccuracies. Nothing finally turns on these inaccuracies either. 52It was not sought to be shown for Mr and Mrs Velingos that had these difficulties with the documentation been identified, before the loan was entered, that they could not have been corrected, or that the loan would not have proceeded. 53What the documents also reflected was the inaccurate picture of earnings which Ikey Velingos had provided Mr Ghezelbash. This deception was not detected by either Mr Ghezelbash or Westpac. It was not, however, sought to be established for Mr and Mrs Velingos that Westpac accepting a copy of an unsigned tax return involved any departure from its applicable lending guidelines, or prudent lending practice. 54The loan documents were executed by Mr and Mrs Velingos, as well as by Ikey Velingos, at a meeting at Mr Ghezelbash's office at Double Bay. Mr and Mrs Velingos gave evidence of what occurred at the meeting. Mr Ghezelbash also gave an account of the meeting, as well as an account of what Ms Malpas' usual practice was, when explaining such documents to a borrower. His evidence was that her usual practice was followed that day. 55Mr Ghezelbash recollected that the meeting took longer than usual, over half an hour. Mr and Mrs Velingos remembered that it took only about 15 minutes, although when pressed, Mr Velingos agreed that it could have been longer. Mr and Mrs Velingos each insisted that at the meeting, nothing was explained to them about the documents they were signing and that their son Ikey Velingos translated none of the documents to them. The documents which they signed included advice that they should obtain independent advice. 56From his observations, Mr Ghezelbash believed that Ikey Velingos had translated things which were being said about the documents produced by Ms Malpas, in accordance with her usual practice, but he agreed that he could not be certain as to what was translated. He did not speak Greek. 57The evidence which Mr and Mrs Velingos gave in cross-examination as to their understanding of the Westpac transaction and the documents which they signed at the meeting, made it clear that they were aware of the increased sum which was being borrowed from Westpac; that they knew they were at the meeting to sign the loan documents; they were aware that it was intended to repay the NAB loan with part of those funds; they were not concerned about who provided those funds, or that their borrowings were to be increased significantly, for their son's investment purposes. They were also content to take the risks involved, if he was not able to repay these borrowings. 58This evidence explains the case finally pressed in closing submissions for Mr and Mrs Velingos, that the contract was unjust in the circumstances in which it came to be made, given Mr and Mrs Velingos' personal circumstances and the absence of independent advice about the proposed loan. While it was accepted that this was not a case of asset lending, it was argued that given that Mr and Mrs Velingos were not to receive the benefit of the loan and were putting their house at risk, in circumstances where if the real payer 'drops dead or goes bankrupt', they would be in dire trouble, the result was that Westpac's conduct was unconscionable. That conclusion accorded with that reached in Spina v Permanent Custodians Ltd [2009] NSWCA 206. 59Furthermore, it was argued, it was impermissible to speculate what Mr and Mrs Velingos would have done, had they received independent advice at the time. That conclusion was urged on the basis of what was observed in Bridgewater v Leahy [1998] HCA 66; (1998) 194 CLR 457, where it was said: "[100] Where the complaint is of unconscionable dealing, the point is rather different. As Manning J put it in Re Levey; Ex parte Official Assignee (1894) 15 NSWR (B&P) 30 at 36., "the Court does not allow any person to take advantage of any known weakness of the vendor" and the Court asks whether that party had "the opportunity" of professional advice as to "the effect of what he [was] doing". This denial of the opportunity to have "the assistance of a disinterested legal adviser" Longmate v Ledger (1860) 2 Giff 157 at 163 [66 ER 67 at 69], rather than speculation as to what might have followed had it been pursued, is an element in the unconscientious conduct in respect of which equity intervenes to deny the entitlement of the disponee to retain the property in question, unless the disponee shows the disposition to have been "fair, just and reasonable" Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 at 474." 60That, it was submitted, provided 'the answer to this case'. It followed that the unconscionable conduct on the part of Westpac, in not ensuring that Mr and Mrs Velingos received independent advice about the loan, as its own lending guidelines envisaged, was 'the end of the matter'. That was disputed by Westpac, which argued that Bridgewater did not have the consequence claimed for the case brought against it under the Contracts Review Act . In my view that submission must be accepted. 61Bridgewater was a case concerned with a property transaction entered between certain family members, in respect of which complaints of undue influence and unconscionability were advanced. Section 7 of the Contracts Review Act , by way of contrast, empowers the Court to grant various relief, if it finds a contract or a provision of a contract to have been unjust in the circumstances relating to the contract at the time it was made, if it considers it just to do so, and for the purpose of avoiding as far as practicable, an unjust consequence or result. 'Unjust' is defined in s 4 to include 'unconscionable, harsh or oppressive'. 62Section 9 specifies the matters which are to be considered, providing: "(1) In determining whether a contract or a provision of a contract is unjust in the circumstances relating to the contract at the time it was made, the Court shall have regard to the public interest and to all the circumstances of the case, including such consequences or results as those arising in the event of: (a) compliance with any or all of the provisions of the contract, or (b) non-compliance with, or contravention of, any or all of the provisions of the contract. (2) Without in any way affecting the generality of subsection (1), the matters to which the Court shall have regard shall, to the extent that they are relevant to the circumstances, include the following: (a) whether or not there was any material inequality in bargaining power between the parties to the contract, (b) whether or not prior to or at the time the contract was made its provisions were the subject of negotiation, (c) whether or not it was reasonably practicable for the party seeking relief under this Act to negotiate for the alteration of or to reject any of the provisions of the contract, (d) whether or not any provisions of the contract impose conditions which are unreasonably difficult to comply with or not reasonably necessary for the protection of the legitimate interests of any party to the contract, (e) whether or not: (i) any party to the contract (other than a corporation) was not reasonably able to protect his or her interests, or (ii) any person who represented any of the parties to the contract was not reasonably able to protect the interests of any party whom he or she represented, because of his or her age or the state of his or her physical or mental capacity, (f) the relative economic circumstances, educational background and literacy of: (i) the parties to the contract (other than a corporation), and (ii) any person who represented any of the parties to the contract, (g) where the contract is wholly or partly in writing, the physical form of the contract, and the intelligibility of the language in which it is expressed, (h) whether or not and when independent legal or other expert advice was obtained by the party seeking relief under this Act, (i) the extent (if any) to which the provisions of the contract and their legal and practical effect were accurately explained by any person to the party seeking relief under this Act, and whether or not that party understood the provisions and their effect, (j) whether any undue influence, unfair pressure or unfair tactics were exerted on or used against the party seeking relief under this Act: (i) by any other party to the contract, (ii) by any person acting or appearing or purporting to act for or on behalf of any other party to the contract, or (iii) by any person to the knowledge (at the time the contract was made) of any other party to the contract or of any person acting or appearing or purporting to act for or on behalf of any other party to the contract, (k) the conduct of the parties to the proceedings in relation to similar contracts or courses of dealing to which any of them has been a party, and (l) the commercial or other setting, purpose and effect of the contract. (3) For the purposes of subsection (2), a person shall be deemed to have represented a party to a contract if the person represented the party, or assisted the party to a significant degree, in negotiations prior to or at the time the contract was made. (4) In determining whether a contract or a provision of a contract is unjust, the Court shall not have regard to any injustice arising from circumstances that were not reasonably foreseeable at the time the contract was made. (5) In determining whether it is just to grant relief in respect of a contract or a provision of a contract that is found to be unjust, the Court may have regard to the conduct of the parties to the proceedings in relation to the performance of the contract since it was made." 63It follows that the statutory framework does not permit the conclusion urged for Mr and Mrs Velingos, namely, that the absence of independent legal advice is 'the end of the matter'. The absence of such advice is one of the factors which requires the Court's consideration, in determining whether a contract is relevantly 'unjust' and if so, what relief, if any, should follow. Of itself, it is not determinative. 64What was decided in Spina , can lead to no other conclusion. There, what arose for consideration was a contract under which Angelina Spina (deceased) and her son, Michael (also deceased), and the lender entered into a loan agreement under which the lender obtained a mortgage over Angelina's property, virtually her only asset, as security for a $400,000 loan to Angelina and Michael. At the time of contracting, Michael held a power of attorney in relation to Angelina's affairs. She was an Italian-born woman who was 86 years old at the time of contracting, who lived in a nursing home and had no income. The lender's guidelines were not observed and Angelina received no independent advice. There was a matrix of factors which led to the conclusion that the contract was unjust. It did not turn on the absence of legal advice alone. On the evidence in that case, it can readily be seen why it was concluded that Angelina had been denied the opportunity to receive legal advice. That Mr and Mrs Velingos were in a very different position is apparent. 65It was common ground that the Contracts Review Act requires consideration of the claim advanced by way of a two step process. Firstly, by a consideration of whether the contract was unjust, a matter of fact to be determined on the evidence. Secondly, if it is found to be unjust, whether relief should be granted as a matter of discretion (see Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41 at [34] - [36]). Was the contract unjust? 66In Spina it was observed at [124] '[u]nder the Contracts Review Act , the focus is on the weaker party as to whether the contract operates unjustly towards the weaker party. Furthermore, under the Contracts Review Act relief may be given even if the relevant circumstances are not known to the other party when the contract was entered into...'. The conduct of the stronger party, even in relation to adherence to its own guidelines, designed to protect its own position rather than that of the weaker party, is also relevant to be considered (see Khoshaba ). 67The question of whether the contract was unjust, must be determined as at the time that the contract was made. At that point, it was certainly apparent to Westpac that Mr and Mrs Velingos were elderly and that if their son were not to repay the loan, they were at risk of losing their home. 68Here, there is no question that Mr and Mrs Velingos did not receive independent legal advice about the Westpac loan. Westpac's guidelines envisaged that they would be advised to obtain such advice. They did not read or understand English well; they were retired and did not themselves have the means to repay either their existing NAB borrowings, or the increased borrowings which they and their son borrowed from Westpac. While this was not a situation of asset lending, the risk which they were taking if he failed to make the necessary repayments, was considerable. All of these matters favour the case which Mr and Mrs Velingos advanced, as does the evidence that unbeknownst to Westpac, their son was not translating to them what Ms Malpas was explaining about the transaction and the documents they were executing. 69It must have also been apparent to those present at the meeting when the loan documents were signed, including Ms Malpas, given Mr and Mrs Velingos' command of English, that they were reliant on their son for information about the proposed Westpac borrowings and what they were signing. That in the circumstances, they could have been at a disadvantage, was thus a possibility, which Westpac had to consider. 70The property was owned by Mr and Mrs Velingos and their son. While a substantial part of the loan was to be used to repay the NAB borrowings, some $140,000, was to be used for Ikey Velingos' purposes. While Ikey Velingos had substantial assets, and it appeared, income sufficient to meet the repayments on the borrowings, he also had substantial liabilities and was known to have been seeking to borrow other funds. That in those circumstances, there was a risk that Mr and Mrs Velingos might have been the subject of his undue influence, was a possibility which also had to be considered by Westpac. On the evidence, that was a situation it was concerned to deal with. Officers such as Ms Malpas were thus directed as to the approach to be adopted in a situation such as this. 71The written loan documentation contained advice that Mr and Mrs Velingos should obtain independent advice. Westpac also required Mr and Mrs Velingos to sign a document, confirming that they had been given that advice and another document confirming that this advice and other documents had been translated for them. Given the circumstances in which the documents came to be signed, it must have been obvious that the state of Mr and Mrs Velingos' knowledge and understanding of what they were signing, depended on Ikey Velingos translating accurately what was being said by Ms Malpas about what was written in the documents. 72On what was known of Ikey Velingos' circumstances, that he would be seeking to disadvantage his parents was not obvious, nor was it obvious that he might have been misleading his parents as to what he was translating. It was a possibility which Westpac could have addressed, by having someone independent translate to Mr and Mrs Velingos, what Ms Malpas was advising them of at the meeting. That did not occur, with the result, on Mr and Mrs Velingos' evidence, that they did not understand Westpac's advice that they should obtain independent advice about the transaction and did not know that they were singing an acknowledgment that they had received such advice. 73Whether that part of the acknowledgement document was explained by Ms Malpas and translated by Ikey Velingos, was also in issue. Westpac led no evidence from Ms Malpas that this was a matter which she dealt with at the meeting. Mr Ghezelbash thought that she had, in accordance with her usual practice, but accepted that Ikey Velingos might not have translated what she said accurately. Mr and Mrs Velingos' evidence was that he did not tell them about this advice. 74Perhaps this explains Westpac's concession in these proceedings in relation to the $140,000, which it does not seek to recover from Mr and Mrs Velingos. The basis for the concession was not explained. Nevertheless, the question of whether the contract was unjust in the circumstances must still be determined. 75I am satisfied, given the very many concessions which both Mr and Mrs Velingos made in cross-examination, contrary to their interests, that this aspect of their evidence must be accepted. Neither Mr nor Mrs Velingos can read English. That they did not know the precise nature of each document which they signed, must be accepted. I am inclined to accept Mr Ghezelbash's evidence as to the explanation which Ms Malpas gave, in accordance with his experience of her usual practice, as honestly given. Mr and Mrs Velingos could not contradict that evidence, given their command of English. 76The explanation for Ms Malpas' absence was said for Westpac to have been the many concessions made by Mr and Mrs Velingos in their cross-examination, as to the state of their knowledge about the Westpac transaction. What still remained, however, was the question of whether or not she drew attention to and explained Westpac's advice, that they should obtain independent advice about the transaction. 77Whatever evidence Ms Malpas might have given if she was called, Mr and Mrs Velingos' recollection that they were not told by their son of Westpac's advice that they should obtain independent advice, would also remain to be considered. 78Ikey Velingos, the obvious witness who could have corroborated their evidence, was also not called. That he was not called because he was the person who had 'ripped off' Mr and Mrs Velingos, is not an adequate explanation for his absence, given their evidence as to his whereabouts and their ongoing relationship. Any difficulties with his evidence could have been dealt with by way of an application under s 38 of the Evidence Act 1995. His evidence was relevant to their case against both Westpac and Mr Ghezelbash; Ms Malpas' evidence was relevant to their case against Mr Ghezelbash. 79The real conundrum posed by the failure to call both Ms Malpas and Ikey Velingos is the Jones v Dunkel inferences, that their evidence would not have assisted Westpac or Mr and Mrs Velingos' cases, respectively and in the case brought against Mr Ghezelbash, that Ms Malpas' evidence would not have assisted Mr and Mrs Velingos' case. 80The evidence which Mr and Mrs Velingos each gave was consistent as to their son's failure to translate Ms Malpas' explanations and warning. Mr Ghezelbash conceded the obvious possibility that Ikey Velingos was not faithfully translating what Ms Malpas said. Given this concession and the very many concessions which Mr and Mrs Velingos each made, adverse to their case, my conclusion is that their evidence in cross-examination as to this matter must be accepted as having been truthfully given. As I have said, I accept Mr Ghezelbash's evidence as to what he heard Ms Malpas explain at the meeting. 81What must also be considered, however, is the evidence which they gave in cross-examination as to their knowledge, understanding and consent to the Westpac borrowings. That throws a considerably different light on the case which they advanced. 82On that evidence, at the time, that they could not understand documents they were executing was not of concern to them. They were clearly not then concerned to have the loan and mortgage documents translated or explained to them, before they signed them. They were content to enter the new transaction without precisely understanding what the loan documents provided. Nor were they concerned to obtain independent legal advice. It had been their understanding since 1993, when they did obtain independent advice, from a Greek speaking solicitor, that they were taking a significant risk when they agreed to obtain borrowings secured over the house which they owned together with their son, for his business purposes. Over the intervening years they had repeatedly taken further such risks, including when they transferred a one third share in their home to their son and later, when they repeatedly agreed to increase the borrowings secured over the house. They were content in 2005 to do so again. 83While their son did not translate to them what Ms Malpas said at the meeting about the documents, nor could they themselves read what the documents they signed provided, on their own evidence they did understand that the documents they were signing were the loan and mortgage documents which would bind them to repay the loan, if their son failed to do so, the loan being secured over their home. They also knew that the major part of the borrowings was to be used to refinance the NAB loan and the rest, for their son to invest. 84The usual rule is that people are bound by the contracts which they sign. As the High Court explained in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 at [47]: "The importance which, for a very long time, (See Whelpdale's Case (1604) 5 Co Rep 119a [77 ER 239]; Holdsworth, A History of English Law (2nd ed, 1937), vol 8 at pp 50-51) the common law has assigned to the act of signing is not limited to contractual documents. Wilton v Farnworth was not a contract case. The passage from the judgment of Latham CJ quoted above is preceded by a general statement that, where a man signs a document knowing that it is a legal document relating to an interest in property, he is in general bound by the act of signature ( Wilton (1948) 76 CLR 646 at 649.) Legal instruments of various kinds take their efficacy from signature or execution. Such instruments are often signed by people who have not read and understood all their terms, but who are nevertheless committed to those terms by the act of signature or execution. It is that commitment which enables third parties to assume the legal efficacy of the instrument. To undermine that assumption would cause serious mischief." 85There are many circumstances in which the common law will permit a departure from that rule. In Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447 Mason J, for example observed, at 461: "Historically, courts have exercised jurisdiction to set aside contracts and other dealings on a variety of equitable grounds. They include fraud, misrepresentation, breach of fiduciary duty, undue influence and unconscionable conduct. In one sense they all constitute species of unconscionable conduct on the part of a party who stands to receive a benefit under a transaction which, in the eye of equity, cannot be enforced because to do so would be inconsistent with equity and good conscience. But relief on the ground of 'unconscionable conduct' is usually taken to refer to the class of case in which a party makes unconscientious use of his superior position or bargaining power to the detriment of a party who suffers from some special disability or is placed in some special situation of disadvantage ... Although unconscionable conduct in this narrow sense bears some resemblance to the doctrine of undue influence, there is a difference between the two. In the latter the will of the innocent party is not independent and voluntary because it is overborne. In the former the will of the innocent party, even if independent and voluntary, is the result of the disadvantageous position in which he is placed and of the other party unconscientiously taking advantage of that position." 86At 462 his Honour said that: "It is not to be thought that relief will be granted only in the particular situations mentioned by their Honours. It is made plain enough, especially by Fullagar J., that the situations mentioned are no more than particular exemplifications of an underlying general principle which may be invoked whenever one party by reason of some condition of circumstance is placed at a special disadvantage vis-a-vis another and unfair or unconscientious advantage is then taken of the opportunity thereby created. I qualify the word "disadvantage" by the adjective "special" in order to disavow any suggestion that the principle applies whenever there is some difference in the bargaining power of the parties and in order to emphasize that the disabling condition or circumstance is one which seriously affects the ability of the innocent party to make a judgment as to his own best interests, when the other party knows or ought to know of the existence of that condition or circumstance and of its effect on the innocent party." 87Departures from the usual rule are also permitted by the Contracts Review Act . By their cross-claim, Mr and Mrs Velingos asserted that they were labouring under many disadvantages which provided a proper basis for departure from the usual rule in their case. The vast majority of those assertions were not established on their evidence. In particular, they did not establish that the circumstances in which they entered into the transaction were such that they were unable to judge for themselves, whether or not they should do so. 88Here there was no complaint about any particular term of the loan or the precontractual negotiations. The complaints advanced included that Mr and Mrs Velingos did not understand the meaning and significance of the documents; that they did not know they were borrowing money; did not understand what obligations they would have; did not know how their house was involved; did not know that they might be responsible or their house might be at risk; did not properly know the significance and meaning of the documents they were signing; were unable to judge for themselves whether the transaction with Westpac was in their best interests; were deprived by Ikey Velingos of the ability to look after their own interests; had no specific knowledge of the use to which Ikey Velingos was putting that part of the Westpac loan money in excess of the NAB refinance amount (i.e. in excess of $533,000); had little understanding of business affairs; were induced by their son to sign the loan and mortgage documents under his guidance; and did not know and it was never effectively explained to them (and certainly not in a language they adequately understood), that they might have an obligation to repay the loan. 89None of these complaints were established. 90They were certainly elderly, with limited command of English and no ability themselves to repay the loans. They had not received independent advice about the transaction and so far as Westpac was concerned, were clearly volunteers, prepared to assist their son, in pursuit of his business interests. 91Nevertheless, their own evidence revealed that they were experienced borrowers who had in the past received independent legal advice from Mr Angelos, counselling them that it was not in their interests to take a risk in giving their home as security for borrowings for their son; they had rejected his advice and took the risk they were counselled against; over the years, further moneys were repeatedly borrowed; they transferred a share of their house to their son; they were content to refinance their existing borrowings and borrow further sums from Westpac, without obtaining independent advice, knowing what their son intended to do with the increased borrowings. They were well aware of the risks they were thereby taking. 92In coming to a conclusion about whether the contract was unjust, consideration must not only be given to the matters I have mentioned, but also the evidence that on what was disclosed as to Ikey Velingos' financial position, there is no suggestion that Westpac was making an imprudent loan. Nor is it suggested that this was a case of asset lending. To the contrary, it is accepted that it appeared that Ikey Velingos had the capacity to make the loan repayments and he had no history of default in respect of any past borrowings. Also to be considered is the question of what Mr and Mrs Velingos would have done, if their son had translated what Ms Malpas said to them and they had taken independent advice. I do not accept that this involves impermissible speculation, given the evidence which Mr and Mrs Velingos gave about their attitude at the time. There was no evidence as to what advice they might have received in 2005, had it been sought by Mr and Mrs Velingos. Logically, no doubt like Mr Angelos advised in 1993, given the risks being run in the event that the loan fell into default, Mr and Mrs Velingos would have been advised against increasing the NAB borrowings. It was certainly not established, however, that independent legal advice would have uncovered Ikey Velingos' deception as to his income. 93In all of these circumstances, given that Mr and Mrs Velingos were not independently advised and that what Ms Malpas said at the meeting as to obtaining independent advice was not translated to them by their son, can it be concluded that the contract was unjust? 94Clearly independent advice would not have furthered their understanding of the nature of the transaction which they were entering, or the risks which they were thereby taking. They already had an understanding of those matters. Since the advice they had received in 1993, they had been aware that if their son did not repay the loan, they would lose their house. That risk remained as the borrowings were increased over the years, including in 2005, when the Westpac loan was obtained. Their own financial circumstances had never improved after 1993. 95Despite this, they repeatedly increased the amount of the borrowings secured over their house. They did so, being content to help their son and confident that they had good reason to trust him. They were content to take the risk involved. 96The assessment of whether the contract was unjust must be made in the light of the evidence which Mr and Mrs Velingos gave as to their true position at the time that they entered into the contract, even though it appears that it was not then known to Westpac. Indeed, it was not revealed until they were cross-examined. 97That evidence clearly established that both Mr and Mr Velingos well understood what they were doing when they executed the Westpac documents, notwithstanding how their son misled them as to what Ms Malpas said at the meeting and the fact that they had not received independent legal advice. That he was not translating accurately cannot have been known to either Ms Malpas to Mr Ghezelbash. Clearly, however, they were not conniving with Ikey Velingos to mislead his parents. 98Given their own evidence, further legal advice would not have added to Mr and Mrs Velingos' understanding of the risks they were taking, in borrowing funds from Westpac, secured over the home of which they owned two thirds, in order both to repay the NAB loan and so that the additional funds could go to their son Ikey Velingos to invest. 99They had rejected Mr Angelos' advice against taking such a risk in 1993. They had never thought it necessary to take further legal advice about repeatedly taking that risk. The explanation for their approach lay in the fact that their son had never had any difficulty making loan repayments, even as the borrowings increased. In 2005, they were again not concerned about what they were doing, being confident that their son would have no problem in making the necessary increased repayments, given their repeated experiences since 1993. Even so, their evidence was that they each understood that having given a mortgage over their property, if the loan was not repaid, they were at risk of losing their home. 100In 2005, Ikey Velingos was plainly prepared to mislead those with whom he was dealing, including his parents, as to his financial circumstances. It is apparent that they now wish that in 2005 they had been told of their son's true financial position. That was information concealed from them by their son, not Westpac. 101In my assessment, what they would have done, if their son had told them of his true circumstances is questionable. They both gave evidence not only as to the help which they had been repeatedly prepared to give him, at significant risk to themselves, but also as to their preparedness to help him further, even if they had then been warned against that course. That evidence suggested that they would have proceeded with the Westpac loan, in any event, even had they then been given independent advice, counselling them against taking out the increased loan. 102In Elkofairi v Permanent Trustee Co Ltd [2002] NSWCA 413 it was observed by Beazley JA: "77 However, as Handley JA observed in Esanda Finance Corp Ltd v Tong (1997) 41 NSWLR 482 at 491: "... as this Court held in West v AGC (Advances) Ltd (1986) 5 NSWLR 610, a contract is not unjust merely because it was not in someone's interest to enter into it, or because a person is unable to pay the debt when called upon to do so, or because its enforcement will lead to the loss of a home." 78 It would appear that the trend of authority since West is that the Contracts Review Act permits a court not only to look at the terms of the contract per se , to see its terms are unjust, but to look at the circumstances in which the contract was made and its effect, having regard to those circumstances. It is not sufficient, however, for a claimant for relief under the Act merely to point to a loss or inopportune transaction. This approach, in my view, is not inconsistent with what McHugh JA said in West . Rather, as Mahoney P pointed out in Elders v Smith , it gives full effect to what McHugh JA said." 103In Khoshaba , Basten JA observed, albeit in the context of an asset lending case, at [128]: "To engage in pure asset lending, namely to lend money without regard to the ability of the borrower to repay by instalments under the contract, in the knowledge that adequate security is available in the event of default, is to engage in a potentially fruitless enterprise, simply because there is no risk of loss. At least where the security is the sole residence of the borrower, there is a public interest in treating such contracts as unjust, at least in circumstances where the borrowers can be said to have demonstrated an inability reasonably to protect their own interests, for the purposes of, for example, s 9(2)(e) or (f). That does not mean that the Act will permit intervention merely where the borrower has been foolish, gullible or greedy. Something more is required: see Esanda Finance Corp Ltd v Tong (1997) 41 NSWLR 482 at 491 (Handley JA) cited with approval in Elkofairi (supra) at [77] by Beazley JA." 104In this case, I am not able to be satisfied that this 'something more ' was established. At the time of the Westpac transaction, it is not apparent on what was known of Ikey Velingos' financial circumstances, that Mr and Mrs Velingos were being foolish or even gullible, in the support which they were giving him. As it turned out, notwithstanding their experiences to that point, in the long run it proved to have been not in their interests to continue giving him their support, given his own financial circumstances. That has led to the loss of their home. On what was established of the claim which Mr and Mrs Velingos advanced in these proceedings, however, I am unable to come to the conclusion that it has been shown that the Westpac loan, or the contracts by which it was put in place, were unjust, notwithstanding the absence of independent legal advice about that loan being obtained by Mr and Mrs Velingos and the circumstances in which they executed the loan documents. Could a discretion have been exercised in Mr and Mrs Velingos' favour, if the contract was found unjust? 105Whether, in the circumstances, any discretion would have been exercised in Mr and Mrs Velingos' favour, had the contract been found unjust, should also be dealt with. Westpac pursues Mr and Mrs Velingos only in respect of the balance of the sum borrowed in order to repay the NAB loan plus its costs. 106Contrary to the case advanced in the cross-claim, the evidence which both Mr and Mrs Velingos gave revealed that when they met with Ms Malpas, even though they had not received independent advice, they were aware of the amount that they were borrowing from Westpac; that with the increased borrowing, it was intended to repay the NAB loan; and that the balance was to be used by their son, Ikey Velingos, for investment. They also knew they were liable to repay that sum, if their son was unable to do so. 107Mr and Mrs Velingos were also aware that the increased borrowings would be secured by way of mortgage over their home and that they were at risk of losing their home, if the loan was not repaid. They knew that they were at the meeting to sign the necessary documents. They were not concerned about agreeing to the increased borrowings. They trusted their son and had no reason to believe that he would encounter any problems in making repayments on the increased borrowings, given their experience since 1993. 108The claim advanced was that the contracts should be varied, so that the amount secured over their home under the loan would be reduced, not only by the $140,000 but by part of the amount used to repay the NAB. There is no question that the Court has power to make orders varying the loan agreement under s 7(1)(c) of the Contracts Review Act, to reduce the amount of the borrowings which Mr and Mrs Velingos must repay, in the terms which they finally pressed. Those orders were formulated after I had expressed concern about the grant of any relief which could have the result of benefiting Ikey Velingos. 109The form of the orders proposed to address that concern seem unnecessarily complex. It was submitted for Mr and Mrs Velingos that their situation was like that which had arisen for consideration in Spina . I am unable to accept that submission, but nevertheless, it must be observed that the orders made in that case, declared the agreement in question void and varied it, but only in so far as the plaintiff was concerned. The position of the other borrower was not disturbed. It seems that was a result which Mr and Mrs Velingos sought to avoid in this case. 110The circumstances in Spina did have some similarities to this case, namely that the property there in question was the only asset of an elderly person, who had received no advice in relation to borrowings obtained for the benefit of a relative, in circumstances where lending guidelines were to the effect that in such circumstances, the plaintiff should have been advised to obtain independent legal advice. 111Unlike Spina , however, the transaction here in question did not involve asset lending (see Kowalczuk v Accom Finance Pty Ltd [2008] NSWCA 343 where the unjustness of asset lending was discussed). Nor did it involve a guarantor who had received no benefit from the borrowing. Mr and Mrs Velingos obtained a very clear benefit from these borrowings, namely repayment of the NAB loans, a part of which now lies at the heart of what remains in issue between the parties. The other very significant difference was that it could not be established in Spina, that there was any understanding on the part of the elderly guarantor of the burden and risks which she took on. She had died in the meantime. The circumstances here are significantly different, Mr and Mrs Velingos having on their own evidence a very real understanding of those matters, as well as being prepared to take those risks. 112The need to explain the extent of the liability being taken on and the risk being incurred, if the transaction is to survive attack under the Contracts Review Act, was discussed in Spina (see at [51] - [54]). At [60] it was observed: "As three justices said in Bridgewater v Leahy (1998) 194 CLR 457, 486 [100] following Longmate v Ledger (1860) 2 Giff 157, 163; 66 ER 67, 69, the crucial matter is whether the person seeking to set aside the transaction was denied the opportunity to have the assistance of a disinterested legal adviser." 113It was also noted in Spina that the situation would be different, if the transaction were clearly for the borrower's benefit, or a purely commercial one, with no flavour of possible influence or benefit of a relative (at [64]). 114In this case, there is no suggestion of asset lending, or even that this was an imprudent loan, notwithstanding the false information provided by Ikey Velingos in relation to income. While there was a possibility of his influence on Mr and Mrs Velingos, which Westpac ought to have guarded against, that the borrowings which are now in question were to their real benefit, in so far as the repayment of the NAB borrowings were concerned, was apparent. Westpac does not now seek to recover from Mr and Mrs Velingos more than what was used to repay the NAB borrowings, and its costs and expenses in the pursuit of those funds. 115There was never any earlier difficulty or default in repayment of the NAB borrowings. They were repaid in full in 2005 from the Westpac loan. Had that not occurred, it would seem that Mr and Mrs Velingos would have been in a position where the risk they always knew they were taking, when agreeing to the NAB borrowings, would have materialised in 2007, when Ikey Velingos came to be in a position where he could no longer make loan repayments. 116At that point, they would have been liable to repay the entire amount of the NAB borrowings. On the evidence, unlike the situation in Spina (discussed at [117] - [118]), they would not have recovered any contribution from their son. 117It follows that even if it could be accepted that the absence of independent legal advice warranted a finding that the contracts were unjust, no basis was established on which it could be justly concluded that a discretion could be exercised in Mr and Mrs Velingos' favour, to make the orders pressed in relation to part of the amount used to repay the NAB borrowings, which is now in issue. To make the orders sought would shelter them from the risks which on their own evidence they willingly took on in relation to the NAB borrowings when they were obtained, knowing the risks they were taking, if their son was unable to continue making repayments. 118On their evidence, in 2005 Mr and Mrs Velingos well understood that what was being done was to replace one mortgagor with another, in relation to the NAB borrowings, as well as borrowing an additional $140,000. The result of the variation sought is not only to take the benefit of the $140,000 which Westpac does not pursue, but also to vary the contract to reduce what was secured by the mortgage by that sum, plus another one third of the NAB borrowings, plus interest. That is clearly a result which is not reflective of Mr and Mrs Velingos' pre-existing obligations in relation to the NAB borrowings, or their understanding and consent to their position in respect of those borrowings. 119Reliance was also placed on the approach taken by Patten AJ in Permanent Mortgages Pty Ltd v Cook [2006] NSWSC 1104. There, however, his Honour concluded that the defendants should be returned to the position they were in, prior to the impugned borrowings, so far as costs and expenses of the credit provided by the plaintiff were concerned and that the principal should be reduced to the sum applied to their benefit, the discharge of their existing debts. The relief here pursued is quite different. If Patten AJ's approach were followed, the orders sought would be refused and Mr and Mrs Velingos would then remain in the position they were in, in respect of the NAB borrowings. 120Given the history of these proceedings and what was revealed in the oral evidence, entirely contrary to the case advanced in their cross-claim, it would also clearly not be just to relieve Ikey Velingos of any of his obligations under the loans, or to relieve Mr and Mrs Velingos of the cost of Westpac's pursuit of its rights under the mortgage. That conclusion is reinforced when consideration is given to the concession made in relation to the additional $140,000. 121In all the circumstances here in question, to effectively relieve Mr and Mrs Velingos of the consequences of one third of their NAB borrowings, would in my view go beyond the relief which the statute envisages. Given the case advanced in the cross-claim and how it largely fell away when Mr and Mrs Velingos gave their oral evidence, to relieve them of that liability and the obligation to meet Westpac's costs of the enforcement of that part of its rights under the mortgage, could in my view not be a just exercise of the statutory discretion. The case against Mr Ghezelbash and United Mortgage 122The cross-claim was directed to the amount which Westpac sought to recover from Mr and Mrs Velingos, in the event it succeeded in resisting Mr and Mrs Velingos' claims. Both unconscionable conduct, as well as misleading and deceptive conduct were complained of in the pleadings. Any allegation of fraud was, however, expressly denied, as was any suggestion that Mr Ghezelbash was involved in any attempt by Ikey Velingos to take unfair advantage of Mr and Mrs Velingos. The complaint in relation to misleading and deceptive conduct was not opened, nor cross-examined on, nor initially addressed, but was finally not abandoned. 123Section 12GF of the ASIC Act is concerned with conduct done in contravention of other sections there identified, including s 12DA. That section is concerned with conduct in relation to the provision of financial services that is misleading or deceptive , or is likely to mislead or deceive . As I have said, t he complaint in relation to that allegation was finally but faintly pressed for Mr and Mrs Velingos. Sections 12CA and 12CB are concerned with unconscionable conduct. 124Mr Ghezelbash and United Mortgage were engaged to act as the broker for Mr and Mrs Velingos and their son. It was not in issue that the contract attracted the provisions of the ASIC Act. There was also a commission arrangement in place under a contract with Westpac, under which commission was earned in respect of the loan which Westpac made to Mr and Mrs Velingos and their son. The pursuit of such earnings was argued to have been favoured by Mr Ghezelbash and United Mortgage at the expense of their obligations to Mr and Mrs Velingos. 125That case was not established. 126Mr Ghezelbash's evidence was that he prepared the initial loan application made to Westpac, with his wife's assistance, from information provided by Ikey Velingos and in accordance with Westpac guidelines. Unbeknownst to them, the information provided by Ikey Velingos as to earnings was inaccurate, so far as the false tax return was concerned. Mr Ghezelbash later received a copy of the loan documentation prepared by Ms Malpas and checked it for accuracy against the information he had been provided with. What was originally proposed was that the loan would be obtained by Mr and Mrs Velingos and guaranteed by Ikey Velingos. On the loan application documents finally prepared by Ms Malpas, all three of them would borrow the money which Westpac was prepared to advance to them. 127It appears from information contained in the other loan applications made at the same time, that the loan application which Mr and Mrs Velingos signed did not give a complete account of what Mr Ghezelbash knew Ikey Velingos' assets and liabilities to be. Mr Ghezelbash's explanation was that the complete picture was revealed by the entirety of the applications made to Westpac; and that he had complied with Westpac's guidelines in the documents which he had prepared, as to the way various assets and liabilities were disclosed in the differing loan applications. Thus, for example, only one third of the NAB loan was shown to be a liability of Ikey Velingos and the balance that of his parents, in their loan application. As I observed earlier, nothing finally turns on these matters. Whether or not the approach adopted did adhere to the applicable guidelines was not finally explored. It was also not sought to be shown that if the assets and liabilities had all been disclosed, Westpac would not have provided this loan. 128That there were inconsistencies between the loan applications prepared by Mr Ghezelbash, the information with which he was provided and the documents Ms Malpas produced, as well as inaccuracies in the Westpac documentation prepared by Ms Malpas, was established on the evidence. Again, nothing finally turns on this. It was not sought to be established that anything Mr Ghezelbash did was intended to mislead or deceive either Westpac or Mr and Mrs Velingos, or that it did. 129As well as the loan application involving Mr and Mrs Velingos, Ikey Velingos and his wife Nicky also made a loan application, as did Ikey Velingos and his brothers. From a reading of the various applications, it is apparent that as well as his interest in and existing borrowings on the property, Ikey Velingos also had an interest in properties at Earlwood, Lakemba and Port Macquarie. He also had liabilities in respect of those properties. Not all of these assets and liabilities were referred to in the document Ms Malpas produced. Mr Ghezelbash did not pick this up when he checked the document, against the information with which he had provided. 130It was not the case advanced for Mr and Mrs Velingos, that any of these difficulties resulted in a situation where Westpac had made an imprudent loan to them, or that it had engaged in asset lending. Nor was it suggested that there had been any deliberate steps taken by Mr Ghezelbash and United Mortgage to disadvantage them. Those concessions reflected the evidence that on the basis of Ikey Velingos' disclosed assets and earnings, he had the capacity to bear the proposed Westpac loan secured over the property, including the increased borrowings of $140,000 and that Mr and Mrs Velingos were obviously to obtain a benefit from the Westpac loan, namely repayment of the NAB borrowings. 131While it was established that Ikey Velingos had misstated certain earnings, that Mr Ghezelbash was aware of this, that he had set out to mislead Westpac, or that he was aware that Ikey Velingos was seeking to take unfair advantage of his parents, was not shown. 132Mr Ghezelbash was engaged to act as a broker when they were seeking to refinance existing borrowings secured over a property which they owned together and to obtain further moneys for Ikey Velingos' investment purposes. On the information provided to him, it was apparent that Mr and Mrs Velingos had no means to repay such borrowings themselves, so that if not repaid by their son, they would be at risk of losing their home. There was a history of earlier borrowings in relation to which there had never been any problem. Ikey Velingos' disclosed financial position suggested that he could also repay the increased borrowings Westpac was prepared to advance. 133What was only known to Ikey Velingos was that he had supplied false information in relation to income to Mr Ghezelbash, to support the Westpac loan applications. The unsigned tax return provided was false. Mr Ghezelbash was unaware of the deception. It was not suggested that Mr Ghezelbash supplied any false information to Mr and Mrs Velingos. He did pass the information provided on to Westpac, but there was no suggestion that provision of an unsigned tax return departed from Westpac's requirements. 134There was also no evidence which showed that Westpac had an expectation that a broker such as Mr Ghezelbash would warrant the accuracy of information so provided to it, or that it was a broker's obligation to satisfy himself as to the accuracy of information provided by a client. Mr Ghezelbash's evidence that he was never asked to investigate the accuracy of such information, was not challenged. 135There was no express disclaimer in relation to the accuracy of what was provided to Westpac. On the evidence as to the nature of the relationship between Mr Ghezelbash and United Mortgage and the way in which Westpac conducted its own investigations and checks of loan applications, before deciding whether to proceed with an application, that there was an implied disclaimer must be accepted (see Orix Australia Corp Ltd v Peter Donnelly Automotive Pty Ltd [2007] NSWSC 977). 136In the circumstances, it seems to me that it must be concluded that Mr Ghezelbash and United Mortgage's conduct in passing on the inaccurate information provided by Ikey Velingos to Westpac, cannot provide a basis for concluding that they also engaged in misleading and deceptive conduct. (see Yorke v Lucas [1998] HCA 65; (1985) 158 CLR 661 at 666 and Gardam v George Wills & Co Ltd (1988) 82 ALR 415 at 427 and Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592 at [38] - [39]). In Butcher it was observed: "[38] The relevant principles. In Yorke v Lucas[24], Mason ACJ, Wilson, Deane and Dawson JJ said that a corporation could contravene s 52 even though it acted honestly and reasonably: "That does not, however, mean that a corporation which purports to do no more than pass on information supplied by another must nevertheless be engaging in misleading or deceptive conduct if the information turns out to be false. If the circumstances are such as to make it apparent that the corporation is not the source of the information and that it expressly or impliedly disclaims any belief in its truth or falsity, merely passing it on for what it is worth, we very much doubt that the corporation can properly be said to be itself engaging in conduct that is misleading or deceptive." [39] In applying those principles, it is important that the agent's conduct be viewed as a whole. It is not right to characterise the problem as one of analysing the effect of its "conduct" divorced from "disclaimers" about that "conduct" and divorced from other circumstances which might qualify its character. Everything relevant the agent did up to the time when the purchasers contracted to buy the Rednal land must be taken into account. It is also important to remember that the relevant question must not be reduced to a crude inquiry: "Did the agent realise the purchasers were relying on the diagram?" To do that would be impermissibly to dilute the strict liability which s 52 imposes." 137In this case, viewing the conduct in question as a whole, it may not be concluded that Mr Ghezelbash or United Mortgage engaged in misleading and deceptive conduct. The heart of the complaints pressed against Mr Ghezelbash and United Mortgage was their allegedly unconscionable conduct, which was claimed in the cross-claim to have been revealed in various ways. Again, very many of those complaints were proven to have no foundation, given Mr and Mrs Velingos' evidence in cross-examination. 138The case finally pressed on their behalf was that Mr Ghezelbash and United Mortgage had acted unconscionably, knowing their circumstances and that Mr and Mrs Velingos had not received independent legal advice. It was argued that thereby, they had favoured their own interests in achieving their brokerage fee and commission, over those of Mr and Mrs Velingos, who were at obvious risk of exploitation from their son. 139For Mr Ghezelbash and United Mortgage it was accepted that the usual rule that a person was bound by a contract which they signed, irrespective of whether they adhered or understood it, was subject to exception in the case of a person who takes unconscionable advantage of another person, who is under a special disadvantage. It was argued, however, that if the case against Westpac was established, there is no foundation in the ASIC Act to extend the concept of unconscionability, in circumstances where another person stands by and allows a stronger party to a transaction, in this case Westpac, to take advantage of another parties' disadvantage, in this case Mr and Mrs Velingos. It was relevant that Mr Ghezelbash and United Mortgage were not parties to the Westpac transaction which they had entered and did not seek to enforce it. Nor had it been established, it was argued, that Mr Ghezelbash and United Mortgage had used their stronger position, in order to procure Mr and Mrs Velingos' assent to the loan. 140The evidence established that contrary to the claim made in the cross-claim, when they met on 18 April, Mr and Mrs Velingos were aware that Mr Ghezelbash was acting as their broker on the transaction. They had been represented by a broker in the past. Consistently with his evidence that he had always dealt with Ikey Velingos beforehand, their evidence was that Mr Ghezelbash gave them no advice when they met. By that time the loan documents had been prepared by Ms Malpas, on the basis of information which Ikey Velingos had provided Mr Ghezelbash. Mr and Mrs Velingos were clearly content with him having dealt with the necessary arrangements and understood that they were there to sign the loan documentation. It was not even sought to be shown that on Ikey Velingos' true financial position, he could not have serviced the loan. 141That any failure on Mr Ghezelbash's part was motivated by his desire to earn a brokerage fee and commission income, at the expense of Mr and Mrs Velingos was not established. Nor was it established that Mr and Mrs Velingos had not consented to payment of Mr Ghezelbash's brokerage fee, as alleged. They had repeatedly borrowed money on the security of their home and had used a broker before. That they were not aware that there was a fee involved, may not be accepted. 142Their evidence was that Mr Ghezelbash did nothing more than say 'hello' and introduce them to Ms Malpas, who showed them where to sign the documents. On their own evidence, while present, he had no involvement in the meeting at all. They signed without Ms Malpas advising them about the documents, or their son translating any advice which she gave. This evidence was contradicted by Mr Ghezelbash. This is a conflict which must, in my view, be resolved in favour of Mr Ghezelbash. 143Mr Ghezelbash's evidence was that Ms Malpas gave her usual explanation of the documents and that the meeting took somewhat longer than normal, although he accepted that it was possible that Ikey Velingos did not accurately translate what Ms Malpas had said. I accept Mr Ghezelbash's evidence as having been truthfully given. He was prepared to reveal the limit of his recollections and to make concessions, even when against his apparent interest. 144Unquestionably, Mr and Mrs Velingos signed complicated and lengthy documents provided for their signature at the meeting. While the nature of the explanation which Ms Malpas gave and what their son translated was disputed, there is no complaint about any term of the documents themselves. Rather, it was initially a complaint as to their understanding of the risk to which the transaction exposed them, in circumstances where their son was taking unfair advantage of them, amongst a litany of other complaints, about which complaint was made and finally, a narrower complaint was pressed. That they had received no independent advice about the transaction which they entered and received no advice from Ms Malpas as to the nature of the documents they were signing, was finally pressed as also revealing the necessary unconscionable conduct on the part of Mr Ghezelbash and United Mortgage. 145I am not able to accept the case so advanced. 146I have accepted Mr Ghezelbash's evidence as to his recollection that Ms Malpas gave her usual explanation of the loan documents. At one point in the final submissions advanced for Mr and Mrs Velingos it was suggested, for the first time, that he ought to have arranged for an independent translator. I cannot accept the case so advanced. There seems to me nothing unconscionable in a broker leaving an explanation of a bank's documents to a bank officer and nothing from which it could have been apparent to Mr Ghezelbash, that Ikey Velingos, was not giving an accurate translation of what Ms Malpas said. 147Nor does it seem to be unconscionable that a broker does not ensure that a client in the position of Mr and Mrs Velingos receives independent advice about a transaction they are entering with a bank, even elderly clients such as Mr and Mrs Velingos. No authority which supported the view urged was cited. What was decided in Bridgewater , was certainly not a basis on which such a conclusion could rest. Mr and Mrs Velingos did not need independent advice to understand what Mr Ghezelbash had been engaged to do. Nor, on their evidence, did they need it in order to understand the risk they were taking in pursuing the Westpac borrowings. 148The meeting at which the documents were signed took place at Mr Ghezelbash's office. It could have taken place elsewhere. At that stage Mr Ghezelbash was not providing Mr and Mrs Velingos any apparent service. On their own evidence they were very experienced borrowers, who were clearly uninterested in understanding the details of the transaction they were entering. Ikey Velingos was certainly prepared to mislead Westpac as to his financial circumstances; circumstances which he did not reveal to them or Mr Ghezelbash. 149Mr Ghezelbash's evidence was that he had not himself ever considered whether Mr and Mrs Velingos had received independent advice and that it had not occurred to him that they needed such advice, given the circumstances in which the loan was being sought. There was a history of borrowings and regular payment of the NAB borrowings. While they did not themselves have the means to repay the proposed borrowings they and their son were seeking from Westpac, their son did. Mr Ghezelbash did not, however, speak to either Mr or Mrs Velingos, to satisfy himself that his assessment of their situation was correct. 150Given the increased borrowings being sought and what was known of their personal circumstances, that undue influence or exploitation was occurring, was possible, for reasons I have already explained. That Mr Ghezelbash and United Mortgage acted unconscionably in not ensuring that Mr and Mrs Velingos received independent legal advice in those circumstances, was not established. 151No authority supporting the existence of such an obligation between a broker and a client was referred to. Even accepting that this was a matter which Mr Ghezelbash ought to have pursued, given what came to his knowledge when he met Mr and Mrs Velingos, namely their age and means and limited command of English and having in mind the fact of their son's involvement in the transaction, that Mr Ghezelbash's failure to have pursued with them the obtaining of independent advice, caused the loss which is now in issue, was not established. 152On the evidence of both Mr and Mrs Velingos, it is apparent that if Mr Ghezelbash had spoken to them about the transaction, he would have learned, contrary to the case which they later advanced in these proceedings, that they knew that he had acted as their broker; they knew they were attending his office in order to sign the Westpac loan documents; they were well aware of the increased borrowings which they were seeking from Westpac; they were aware of and consented to what their son intended to do with those increased borrowings; they knew the risks they were taking, in the event that their son could not repay the borrowings; they trusted their son and in their minds had good reason for being prepared to take those risks; they had in the past had independent legal advice in relation to earlier transactions, advice which they had not accepted; and that since then they had repeatedly increased the borrowings secured over their house, for their son's benefit and were content to do so again. 153That they would have accepted any advice from Mr Ghezelbash that they should take independent legal advice, even if Mr Ghezelbash had suggested it, is not apparent on their evidence. It was not attempted to establish that had independent legal advice been given to Mr and Mrs Velingos, that Ikey Velingos' deception would have come to light. A solicitor would not have been obliged to provide them with financial advice. The evidence also suggested that if they had been advised against entering the Westpac transaction, they would have proceeded. 154Mrs Velingos' evidence was that at the time, if her son had reassured her that he could afford the increased borrowings, she would have believed him, even if advised by someone else to the contrary. Mr Velingos' evidence was that if his son had insisted that he needed their help, he would have agreed to give it. 155Despite their evidence that their son explained nothing to them about the documents which they signed at the meeting, Mr and Mrs Velingos were well aware of what they were there to achieve, the nature of the transaction they were entering and what they risked in mortgaging their home, in order that their son could obtain more funds from Westpac. They had never sought independent legal or financial advice, since rejecting the advice which they had received from Mr Angelos in 1993. They were content to rely on their son, who they trusted completely. 156This statutory regime requires that some causal link be established between the alleged contravention and the damage claimed. As I have earlier explained, the damages sought to be recovered from Mr Ghezelbash and United Mortgage relates to part of the Westpac borrowings used to repay the NAB loan and from costs and expenses which Westpac is entitled to recover under the mortgage, in pursuing its rights. 157On any view, Mr and Mrs Velingos had the benefit of the NAB borrowings. Given Westpac's position in relation to the additional $140,000, the evidence does not establish that Mr and Mrs Velingos would have been in any better position, had the Westpac loan not proceeded and the NAB loan fallen into default, when Ikey Velingos failed to make repayments due. In this circumstance, the necessary connection between the claimed breach of the ASIC Act and the damage alleged to have been suffered, in my view has not been established. 158Whether the loan later going into default in 2007 was the result of circumstances which already existed when the loan was taken out in 2005, or as the result of subsequent events, is not apparent. Given the false information provided by Ikey Velingos in relation to income, it is possible that problems already existed and that they later materialised, with the result that Ikey Velingos later ceased making loan repayments in 2007. That a causal link was thereby established between the alleged contravention and the damage which is pursued by Mr and Mrs Velingos, in my view, however, was not shown. 159Finally, I observe that even if I had reached conclusions favourable to Mr and Mrs Velingos, it is difficult to see that it could be concluded that a basis for reliance on ss 12GR and 12GF of the ASIC Act , was not established by Mr Ghezelbash and United Mortgage, on the evidence. They provide: "12GR Proportionate liability for apportionable claims (1) In any proceedings involving an apportionable claim: (a) the liability of a defendant who is a concurrent wrongdoer in relation to that claim is limited to an amount reflecting that proportion of the damage or loss claimed that the court considers just having regard to the extent of the defendant's responsibility for the damage or loss; and (b) the court may give judgment against the defendant for not more than that amount. (2) If the proceedings involve both an apportionable claim and a claim that is not an apportionable claim: (a) liability for the apportionable claim is to be determined in accordance with the provisions of this Subdivision; and (b) liability for the other claim is to be determined in accordance with the legal rules, if any, that (apart from this Subdivision) are relevant. (3) In apportioning responsibility between defendants in the proceedings: (a) the court is to exclude that proportion of the damage or loss in relation to which the plaintiff is contributorily negligent under any relevant law; and (b) the court may have regard to the comparative responsibility of any concurrent wrongdoer who is not a party to the proceedings. (4) This section applies in proceedings involving an apportionable claim whether or not all concurrent wrongdoers are parties to the proceedings. (5) A reference in this Subdivision to a defendant in proceedings includes any person joined as a defendant or other party in the proceedings (except as a plaintiff) whether joined under this Subdivision, under rules of court or otherwise. 12GF Actions for damages (1) A person who suffers loss or damage by conduct of another person that contravenes a provision of Subdivision C (sections 12CA to 12CC) or Subdivision D (sections 12DA to 12DN) may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention. (1A) Subsection (1) has effect subject to section 12GNA. Note: Section 12GNA may limit the amount that the person may recover for a contravention of section 12DA (Misleading or deceptive conduct) from the other person or from another person involved in the contravention. (1B) Despite subsection (1), if: (a) a person (the claimant ) makes a claim under subsection (1) in relation to: (i) economic loss; or (ii) damage to property; Caused by conduct of another person (the defendant ) that was done in contravention of section 12DA; and (b) the claimant suffered the loss or damage: (i) as a result partly of the claimant's failure to take reasonable care; and (ii) as a result partly of the conduct referred to in paragraph (a); and (c) the defendant: (i) did not intend to cause the loss or damage; and (ii) did not fraudulently cause the loss or damage; the damages that the claimant may recover in relation to the loss or damage are to be reduced to the extent to which the court thinks just and equitable having regard to the claimant's share in the responsibility for the loss or damage. Note: Subdivision GA also applies proportionate liability to a claim for damages under this section for a contravention of section 12DA. (2) An action under subsection (1) may be commenced within 6 years after the day on which the cause of action that relates to the conduct accrued." 160The responsibility of Ikey Velingos for the circumstances in which Mr and Mrs Velingos were placed, was well established. Had independent advice been necessary, to prevent the loan contracts being unjust, that was the responsibility of Westpac to ensure Mr and Mrs Velingos were advised of, in accordance with its own guidelines. Regard must also be paid to Mr and Mrs Velingos' own contribution to their position, given their preparedness to borrow a substantial further sum of money for their son's use in 2005, without obtaining independent advice; they having in 1993 been advised against the borrowings then proposed and having thereafter pursued those borrowings and significant additional borrowings, without ever reconsidering or taking further advice as to his real ability to meet the repayments which they were relying on him to make. The amount in question, a part of the Westpac loan, was used to repay the NAB borrowings. That Mr and Mrs Velingos had the benefit of the money in issue, may not be overlooked. 161Given all of those matters, the conclusion that no order could be made against Mr Ghezelbash and United Mortgage must follow, even if it could be concluded that the unconscionable conduct had been established. Orders 162For 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. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 June 2011