Permanent Custodians Limited v John Nobilo [2012] NSWSC 109

Supreme Court New South Wales

Medium Neutral Citation: Permanent Custodians Limited v John Nobilo [2012] NSWSC 109 Hearing dates: 13 February 2012 - 16 February 2012 Decision date: 24 February 2012 Jurisdiction: Common Law Before: Adamson J Decision: (1) Judgment for possession of the land described in Folio Identifier [ID] of the Register known as [address]. (2) Grant leave to the plaintiff to issue a writ of possession forthwith. (3) Judgment for the plaintiff against the first, second and third defendants in the sum of $808,046.89. (4) Order the first, second and third defendants to pay the plaintiff's costs of the proceedings. Catchwords: CONTRACT - unjust and unfair - relevant enquiry for the purposes of the Contracts Review Act - whether the contract is unjust in all the circumstances - whether lender made sufficient enquiries concerning ability of mortgagees to service debt - enforceability of mortgage bearing forged signatures PRACTICE AND PROCEDURE - evidence credibility - inferences drawn from failure to call witnesses - whether a witness is in another party's camp Legislation Cited: - Civil Procedure Act 2005 - Consumer Credit Code - Contracts Review Act 1980 - Real Property Act 1900 Cases Cited: - Bank of Western Australia Limited v Tannous [2010] NSWSC 1319 - Breskvar v Wall (1971) 126 CLR 376 - Commercial Banking Co of Sydney Limited v Pollard [1983] 1 NSWLR 74 - Davey v Challenger Managed Investments [2003] NSWCA 172 - Fabre v Arenales (1992) 27 NSWLR 437 - Idoport Pty Limited v National Australia Bank Limited and Ors - Jones v Dunkel inference (from the eponymous case, at (1959) 101 CLR 298 - Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 - Perpetual Trustee Company Limited v Albert and Rose Khoshaba [2006] NSWCA 41 - Perpetual Trustees Victoria Limited v English [2010] NSWCA 32 - Perpetual Trustees Victoria Ltd v English & Anor [2009] NSWSC 47 - Provident Capital v Printy [2008] NSWCA 131 - West v AGC (Advances) Limited (1986) 5 NSWLR 610 Category: Principal judgment Parties: Permanent Custodians Limited - Plaintiff John Nobilo - First Defendant, First cross-claimant on the second cross-claim Jakica Nobilo - Second Defendant, Second cross-claimant on the second cross-claim Judy Saad - Third Defendant Vincent Parisi - First cross-defendant on the second cross-claim Anthony Pascale - Second cross-defendant on the second cross-claim Representation: P Newton - Plaintiff M Avenell - Defendants, Cross-claimants C Colquhoun - Cross-defendants Kemp Strang - Plaintiffs SBA Lawyers - Defendants, Cross-claimants Sparke Helmore - Cross-defendants File Number(s): 2009/00297346