Mango Media Pty Ltd v Comitogianni [2011] NSWSC 152

Supreme Court New South Wales

Medium Neutral Citation: Mango Media Pty Ltd v Comitogianni [2011] NSWSC 152 Hearing dates: 18-22 October 2010 Decision date: 22 March 2011 Jurisdiction: Common Law Before: Davies J Decision: (1) The Plaintiff is entitled to possession of the Burwood Heights property and to a judgment for the appropriate sum outstanding. (2) The Parties should bring in Short Minutes of Order to reflect these reasons. Catchwords: CONTRACTS - unjust contracts - loan obtained by borrower to on-lend to a friend who acted as his finance broker - borrower promised $20,000 for on-lending money -borrower independently but inadequately advised - borrower signs Business Purposes Declaration - whether funds borrowed predominantly for personal, domestic or household purposes - whether on-lending was for a business or investment purpose - loan subject to Credit Code - interest rate reduced - whether finance broker exerted undue influence over borrower - whether unconscionable dealing - effect of undue influence and unconscionable dealing on lender - failure to serve s 80 notice - whether mortgage identified property charged - whether mortgage void for contravening s 40 Credit Code. Legislation Cited: Consumer Credit (New South Wales) Special Provisions Regulation 2007 Contracts Review Act 1980 Public Trustee Act 1941 (WA) Real Property Act 1900 Trade Practices Act 1974 (Cth) Uniform Consumer Credit Code Cases Cited: Bank of Baroda v Shah [1988] 3 All ER 24 Bank of Queensland Ltd v Dutta [2010] NSWSC 574 Beckley v Consumer, Trader and Tenancy Tribunal [2009] NSWSC 703 Benjamin v Ashakian [2007] NSWSC 735 Bromley v Ryan (1956) 99 CLR 362 Brott v Shtranbrandt [2009] VSC 467 Coldunell Ltd v Gallon [1986] QB 1184 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 Commissioner of Taxes v The Australian Mutual Provident Society (1902) 22 NZLR 445 Cromer Excavations Pty Ltd v Cruz Concreting Services Pty Ltd [2011] NSWSC 51 In the will of Sherriff [1971] 2 NSWLR 438 Johnson v Buttress (1936) 56 CLR 113 Jonsson v Arkway Pty Ltd [2003] NSWSC 815 Linkenbolt Pty Ltd v Quirk [2000] VSC 166 Louth v Diprose (1992) 175 CLR 621 Perpetual Trustee Company Limited v Albert and Rose Khoshaba [2006] NSWCA 41 Perpetual Trustees Victoria Limited v Bianka Monas [2011] NSWSC 57 Re Fraser; Ex parte The Public Trustee as Manager of the Estate of Anne Veronica Fraser [2000] WASC 36 Shakespeare Haney Securities Ltd v Crawford [2009] QCA 85 Tillett v Varnell Holdings Pty Ltd [2009] NSWSC 1040 West v AGC (Advances) Ltd (1986) 5 NSWLR 610 Texts Cited: Meagher, Gummow and Lehane, Equity: Doctrines and Remedies, 4th ed (2002) Butterworths, Sydney Category: Principal judgment Parties: Mango Media Pty Ltd (Plaintiff) Giuseppe Comitogianni (Defendant) Representation: M W Young (Plaintiff) D A Smallbone (Defendant) Heidtman & Co Lawyers (Plaintiff) Allied Lawyers (Defendant) File Number(s): SC 2008/289595 & 2008/283681