Perpetual Trustees Victoria Ltd v Belcastro [2011] NSWSC 1418

Supreme Court New South Wales

Medium Neutral Citation: Perpetual Trustees Victoria Ltd v Belcastro [2011] NSWSC 1418 Hearing dates: 2, 29 & 30 November 2010, 1 & 2 December 2010, 2 February 2011 & 25 March 2011 Decision date: 25 November 2011 Jurisdiction: Common Law Before: Adams J Decision: 1.Leave granted to the cross-claimant to file, serve and rely on the second further amended cross-claim filed on 19 April 2011. 2.Leave granted to the second defendant to file, serve and rely on the second further amended defence filed on 23 December 2010. Catchwords: CONTRACT - Mortgage - liability of wife under mortgage entered into by husband and wife - wife under special disadvantage - whether unconscionable and/or unjust for mortgagee to enforce. PROCEDURE - Application for leave to amend pleadings - need amendments not previously appreciated - delay not as a result of tactical or intentional decision - directions to be made to cure any prejudice. LIMITATIONS - Whether action - whether limitation issue should be decided in interlocutory proceedings - evidence relating to loss or damage to be adduced - insufficient known to determine limitation question. Legislation Cited: Civil Liability Act 2002 Contracts Review Act 1980 Consumer Credit Code Fair Trading Act 1987 Limitation Act 1969 Cases Cited: Aon Risk Services Australia v The Australian National University (2009) 239 CLR 175 Palindrome Holdings Pty Ltd v Wass [2009] NSWSC 797 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 Category: Interlocutory applications Parties: Perpetual Trustees Victoria Limited (ACN 004 027 258) (plaintiff/ first cross-defendant) Dominic Belcastro (first defendant) Maria Teresa Belcastro (second defendant/ cross-claimant) Mawson Securities Pty Ltd (second cross-defendant) Ted O'Shannessy (third cross-defendant) Lorraine Astley (fourth cross-defendant) Representation: S B Docker (plaintiff/ first cross-defendant) A J McQuillan (second defendants/ cross-claimant) P A Horvath (third cross-defendant) Kemp Strang (plaintiff/ first cross-defendant) Dennis & Company (first defendant) MJ Woods & Co Solicitors (second defendant/ cross-claimant) Moray & Agnew (third cross-defendant) File Number(s): 2008/288187