Perpetual Trustees Victoria Limited v Belcastro (No 2) [2013] NSWSC 1189

Supreme Court New South Wales

Medium Neutral Citation: Perpetual Trustees Victoria Limited v Belcastro (No 2) [2013] NSWSC 1189 Hearing dates: 2, 29 & 30 November 2010, 1 & 2 December 2010, 25 March 2011,19, 20, 21 & 22 November 2012 & 18 February 2013 Decision date: 30 August 2013 Jurisdiction: Common Law Before: Adams J Decision: 1. Judgment for the plaintiff against the second defendant. 2. The first and second defendants are to deliver up possession of the land in Certificate of Title Identifier 89/9969 within 28 days of the date hereof. 3. Judgment for the third cross-defendant against the cross-claimant. 4. The question of costs to be determined on written submissions as directed. 5. Liberty to apply on three days' notice. Catchwords: MORTGAGES - possession - husband and wife borrow funds secured against their family home on lent to their business - business failed to pay the borrowers who eventually defaulted - application for possession or application for appointment of trustees for sale - Direction to pay - whether completed by borrowers - allegation of fraudulent conduct - application for a loan - whether a mortgage broker was an agent for lender

CONTRACTS - Contracts Review Act - unfair contracts - bargaining position between lending institution and borrower - no imbalance between the parties apart from the usual difference affecting terms of loan - no reason to suspect borrowers were credit risk - whether asset lending

LIMITATIONS - contract and tort - extension of limitation period where fraud or deceit Legislation Cited: Conveyancing Act 1919 Contracts Review Act 1980 Trade Practices Act 1974 (Cth) Competition and Consumer Act 2010 (Cth) Limitation Act 1969 Cases Cited: Argyropoulos v Layton & Anor [2002] NSWCA 183 Wilson v Rigg [2002] NSWCA 246 Perpetual Trustees Victoria Ltd v Belcastro [2011] NSWSC 1418 Leybourne v Permanent Custodians Ltd [2010] NSWCA 78 Learn & Play (Rhodes No 1) Pty Limited as Trustee for Rhodes 1 Childcare Centre Unit Trust v David John Frank Lombe [2011] NSWSC 1506 Taylor v Smith (1926) 38 CLR 48 at 54 (Knox CJ) Suncorp Finance and Insurance Corp v Milano Assicurazioni SpA [1993] 2 Lloyd's Rep 225 Permanent Trustee Co Ltd v Bernera Holdings Pty Ltd [2004] NSWSC 56 Pollard v Wilson [2010] NSWCA 68 Victorian Professional Group Management Pty Ltd v The Proprietors "Surfers Aquarius" Building Units Plan No. 3881 (1991) 1 Qd R 487 Brockway v Pando [2010] WASCA 192 Tonto Home Loans Australia Pty Ltd v Tavares; FirstMac Ltd v Di Benedetto; FirstMac Ltd v O'Donnell [2011] NSWCA 389 Fast Fix Loans Pty Limited v Mladenko Samardzic and Anor [2011] NSWSC 19 Kowalczuk v Accom Finance [2008] NSWCA 343 Spina v Permanent Custodians Limited [2009] NSWCA 206 Perpetual Trustee Company v Khoshaba [2006] NSWCA 41 Category: Principal judgment Parties: Perpetual Trustees Victoria Limited ACN 004 027 258 (Plaintiff/ First Cross-Defendant) Domenci Belcastro (First Defendant) Maria Teresa Belcastro (Second Defendant/ Cross-Claimant) Mawson Securities Pty Ltd (Second Cross-Defendant) Ted O'Shannessy (Third Cross-Defendant) Representation: Counsel: S B Docker (Plaintiff/ First Cross Defendant) C Evatt (Second Defendant/ Second Cross-Claimant) P A Horvath (Second and Third Cross-Defendants) Solicitors: Kemp Strang (Plaintiff/ First Cross-Defendant) Dennis & Company (First Defendant) M J Woods & Co Solicitors (Second Defendant/ Cross-Claimant) Moray & Agnew (Third Cross-Defendant) File Number(s): 2008/288187