Buccoliero v Commonwealth Bank of Australia [2011] NSWCA 371

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Buccoliero v Commonwealth Bank of Australia [2011] NSWCA 371 Hearing dates: 5 October 2011 Decision date: 01 December 2011 Before: Campbell JA at [1]; Young JA at [2]; Handley AJA at [78] 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: CONTRACTS- Contracts Review Act 1980, s 9- unjust contract- undue influence depends not on the state of awareness of the victim but on the psychological ascendency of the perpetrator over the victim- appellant of lower than average intelligence entered into refinancing contract influenced by co-borrower- appellant had no ability to service the loan- primary judge found respondent bank had no knowledge of influence or inability to pay- the establishment of one or more of the criteria in s 9(2) does not necessarily mean the Court will find the contract is unjust- to find a contract unjust, the Court must look at all the circumstances- Court retains discretion as to whether to set aside the contract as unjust- even if a result found in favour of the appellant, to get relief, appellant would have to first repay money used to her advantage to discharge prior mortgage- contract not found unjust. Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth), ss 12CA, 12CB, 12GM Consumer Credit (New South Wales) Code, s 80 Contracts Review Act 1980, ss 7, 9 Real Property Act 1900, ss 57, 80A Trade Practices Act 1974 (Cth), ss 51AA, 51AB, 87 Cases Cited: Collier v Morlend Finance Corporation (Victoria) Pty Ltd (1989) 6 BPR 13,337 Elkofairi v Permanent Trustee Co Ltd [2002] NSWCA 413; 11 BPR 20,841 Fast Fix Loans Pty Ltd v Samardzic [2011] NSWCA 260 Kowalczuk v Accom Finance Pty Ltd [2008] NSWCA 343; 77 NSWLR 205 West v AGC (Advances) Ltd (1986) 5 NSWLR 610 Category: Principal judgment Parties: Loretta Laura Buccoliero (by her Tutor Sylvia Commins) (Appellant) Commonwealth Bank of Australia (Respondent) Representation: Counsel: D H Murr SC and S J Chapple (Appellant) S Aspinall (Respondent) Solicitors: Clamenz Corporate Lawyers (Appellant) Henry Davis York (Respondent) File Number(s): CA 2011/85107 Decision under appeal Citation: Commonwealth Bank of Australia v Munro & anor [2011] NSWSC 128 Date of Decision: 2011-02-25 00:00:00 Before: R A Hulme J File Number(s): SC 2009/293782