Driat Pty Ltd v Thomas [2012] NSWSC 683

Supreme Court New South Wales

Medium Neutral Citation: Driat Pty Ltd v Thomas [2012] NSWSC 683 Hearing dates: 18, 19 June 2012 Decision date: 22 June 2012 Jurisdiction: Common Law Before: Windeyer AJ Decision: Orders: (1) Judgment for the plaintiff against the first defendant for $1,716,024.00. (2) Order that the cross claim be dismissed. (3) Order that the first defendant give possession of property 140 Blencowes Lane, Wildes Meadow being the land in Certificate of Title Folio Identifier 21/622165 to the plaintiff. (4) Stand over the claim for possession of property 3/12 Longworth Avenue, Point Piper Folio Identifier 3/SP17043 for 2 months with leave to restore on 7 days' notice, which notice shall also be given to any first mortgagee. (5) Order the first defendant to pay the plaintiff's costs of the claim and cross claim. Catchwords: MORTGAGE- Real Property- mortgages- claim by mortgagee for possession on default- cross claim under Contracts Review Act- claim by second mortgagee for possession when order for possession already made in favour of first mortgagee- whether orders should be made.

CONTRACT- loan agreements secured by mortgage- lender told purpose of loan- no evidence this was untrue or unintended - borrower understood the nature of documents signed and lender's solicitor relied on documents forwarded to him signed by borrower as to loan purposes, and independent advice- no disability- whether contracts unjust.

EQUITY- unconscionable conduct- no evidence of special disability. Legislation Cited: Contracts Review Act 1980 Cases Cited: Accom Finance Pty Ltd v Mars Pty Ltd [2007] NSWSC 726 Berkshire Capital Funding Limited v Street (1999) 78 P & CR 321 Perpetual Trustee Company Limited v Khoshaba [2006] NSWCA 41 Universal Showcards & Display Manufacturing Limited v Brunt & Ors (1984) 128 Sol Jo 581 Yerkey v Jones (1938-9) 63 CLR 649 Zanzoul v Westpac Banking Corporation (1995) 6 BPR 14,142 Category: Principal judgment Parties: Driat Pty Limited (Plaintiff) Carey Yulan Adria Thomas (First Defendant/Cross Claimant) Anthony Malbon Allison (Second Defendant) Representation: Counsel: