Fast Fix Loans Pty Ltd v Samardzic [2011] NSWCA 260

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Fast Fix Loans Pty Ltd v Samardzic [2011] NSWCA 260 Hearing dates: 29 July 2011 Decision date: 02 September 2011 Before: Bathurst CJ at 1 Allsop P at 2 Campbell JA at 55 Decision: Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: CONTRACT - Contracts Review Act 1980 (NSW) - "asset lending" - deed of guarantee and mortgage by parents of borrower - parents obtained no benefit from transaction - failure of lender to make enquiries concerning ability of parents to repay in event of default - fact that parents guarantors and not borrowers no bar to relief - asset lending not a term of art but an expression applied in cases where contract may be found to be unjust.

CONTRACT - unjust - Contracts Review Act 1980 (NSW) - relevant enquiry for the purposes of the Contracts Review Act, ss 7 and 9 is whether contract is unjust in all the circumstances of the case and whether it is just to grant relief - no requirement of moral obloquy on the part of the party against whom relief is sought. Legislation Cited: Contracts Review Act 1980 (NSW) ss 7, 9, (2)(a), (b), (c), (d), (e), (f), (h), (i), (j) Cases Cited: Beneficial Finance Corporation Ltd v Karavas (1991) 23 NSWLR 256 Kowalczuk v Accom Finance Pty Ltd [2008] NSWCA 343; 77 NSWLR 205 Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41; 14 BPR 26,639 Spina v Permanent Custodians Ltd [2009] NSWCA 206; 14 BPR 26,923 St George Bank Ltd v Trimarchi [2004] NSWCA 120 Category: Principal judgment Parties: Fast Fix Loans Pty Ltd (Appellant) Mladenko Samardzic (First Respondent) Dragica Samardzic (Second Respondent) Representation: M W Young (Appellant) M B J Lee, C Cassimatis (Respondents) Greenstein & Associates Solicitors (Appellant) Mitry Lawyers (Respondents) File Number(s): 2010/34211 Decision under appeal Jurisdiction: 9111 Citation: Fast Fix Loans Pty Limited v Mladenko Samardzic and Anor [2011] NSWSC 19 Date of Decision: 2011-02-04 00:00:00 Before: Hoeben J File Number(s): 2010/34211