Permanent Mortgages Pty Limited v Spartacus Enterprises Pty Limited [2013] NSWSC 911

Supreme Court New South Wales

Medium Neutral Citation: Permanent Mortgages Pty Limited v Spartacus Enterprises Pty Limited [2013] NSWSC 911 Hearing dates: 04/07/2013 Decision date: 11 July 2013 Jurisdiction: Common Law Before: Harrison AsJ Decision: (1) The defendants are to pay the plaintiff the sum of $696,796.41. (2) The plaintiffs are granted possession of the land comprised in certificate of title folio identifier XXX/XXXX being the land situated at and known as xxx XXXX XXXX, Empire Bay. (3) The defendants are to pay the plaintiff's costs of the proceedings as agreed or assessed. Catchwords: CONTRACTS - loan agreement - guarantee and indemnity for loan - default under loan and guarantee - claim for relief of obligations on basis of unjust contract - allegations that statement of assets on loan application false - whether defence of unconscionable transaction - defence not made out - plaintiff granted possession of land Legislation Cited: Australian Securities and Investment Commission Act 2001 Contracts Review Act 1980 Cases Cited: ACCC v Simply No-Knead (Franchising) Pty Ltd [2000] FCA 1365 Canon Australia Pty Ltd v Patton [2007] NSWCA 246 CG Berbatis Holdings Pty Ltd v ACCC [2001] FCA 757; (2001) 185 ALR 555 Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447 Elkofairi v Permanent Trustee Co Ltd [2002] NSWCA 413 Hurley v McDonalds Australia Ltd [1999] FCA 1728, (2000) ATPR 41-741 Kowalczuk v Accom Finance Pty Ltd [2008] NSWCA 343 Perpetual Trustee Company Ltd v Khoshaba [2006] NSWCA 41 Category: Principal judgment Parties: Permanent Mortgages Pty Limited (Plaintiff) Spartacus Enterprises Pty Limited (First Defendant) Craig Barton Nelson (Second Defendant) Representation: Counsel: N Bearup (Plaintiff) Solicitors: Kells (Plaintiff) No Appearance (First and Second Defendants) File Number(s): 2012/56783