Knezevic v Perpetual Trustees Victoria Ltd & Anor [2013] NSWCA 199

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Knezevic v Perpetual Trustees Victoria Ltd & Anor [2013] NSWCA 199 Hearing dates: 21 and 22 May 2013 Decision date: 02 July 2013 Before: Basten JA at [1]; Meagher JA at [3]; Ward JA at [86] Decision: (1) Appeal dismissed. (2) Appellant pay the first and second respondents' costs of the appeal. [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: CONSUMER LAW - misleading or deceptive conduct - appellant suffered loss when borrowed money from lender and invested money in property venture which failed - whether loss caused by misleading or deceptive conduct of solicitor for lender which resulted in making of loan to appellant - alleged representations not made by solicitor's certificate - no sufficient and direct link between any conduct of solicitor and appellant's loss

CONTRACTS - unjust contracts - claim for relief under Contracts Review Act 1980, s 7 - first respondent advanced money secured by mortgage over appellant's home - only evidence of ability to repay loan required by lender was declaration of borrower - loan used to refinance repayment of earlier investment loan - whether loan by first respondent unjust in circumstances - not established appellant unable to act in own commercial interests or that in all circumstances loan unjust Legislation Cited: Contracts Review Act 1980, ss 7, 9 Trade Practices Act 1974 (Cth), ss 51A, 82 Cases Cited: Boland v Yates Property Corp Pty Ltd [1999] HCA 64; 74 ALJR 209 Bullabidgee Pty Ltd v McCleary [2011] NSWCA 259; 15 BPR 29,421 Elkofairi v Perpetual Trustee Co Ltd [2002] NSWCA 413; 11 BPR 20,841 Fast Fix Loans Pty Ltd v Samardzic [2011] NSWCA 260; 15 BPR 29,445 Henville v Walker [2001] HCA 52; 206 CLR 459 Heydon v NRMA Ltd [2000] NSWCA 374; 51 NSWLR 1 Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets [2008] NSWCA 206; 73 NSWLR 653 Kowalczuk v Accom Finance Pty Ltd [2008] NSWCA 343; 77 NSWLR 205 Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41; 14 BPR 26,639 Perpetual Trustees Victoria Limited v Knezevic [2012] NSWSC 956 Provident Capital Ltd v Papa [2013] NSWCA 36 Riz v Perpetual Trustee Australia Ltd [2007] NSWSC 1153; (2008) NSW Conv R 56-198 St George Bank Ltd v Trimarchi [2004] NSWCA 120 Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389; 15 BPR 29,699 Category: Principal judgment Parties: Donka Knezevic (Appellant) Perpetual Trustees Victoria Ltd (First Respondent) Makhoul Legal Corporation Pty Ltd t/as Makhoul Symond Solicitors and Attorneys (Second Respondent) Representation: Counsel: A D Crossland (Appellant) M A Ashhurst SC, S B Docker (First Respondent) K Stern SC (Second Respondent) Solicitors: Marsdens Law Group (Appellant) Kemp Strang (First Respondent) Colin Biggers & Paisley (Second Respondent) File Number(s): 2012/288732 Decision under appeal Jurisdiction: 9111 Citation: Perpetual Trustees Victoria Ltd v Knezevic [2012] NSWSC 956 Date of Decision: 2012-08-23 00:00:00 Before: Adamson J File Number(s): 2007/263471