Bendigo and Adelaide Bank Ltd v Karamihos [2014] NSWCA 17

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bendigo and Adelaide Bank Ltd v Karamihos [2014] NSWCA 17 Hearing dates: 31 October 2013 Decision date: 14 February 2014 Before: Macfarlan JA at [1]; Ward JA at [72]; Sackville AJA at [73] Decision: (1) Direct that within seven days of today's date, the appellant Bank file and serve calculations showing the amount of the judgment, inclusive of interest, to which it is entitled in accordance with the Court's reasons for judgment. (2) Direct that any response by Mr and Mrs Karamihos be filed and served within a further seven days. (3) Direct that any reply be filed within a further seven days. [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: CONTRACTS - Contracts Review Act s 7 - whether loan contract and mortgage unjust - whether borrowers had means to repay loan - relevance of lender's failure to make enquiries concerning an asset of the borrowers to be used to repay loan - whether prior loan history warranted conclusion that borrowers lacked financial acumen - whether age of borrowers indicated that unable to protect own interests - significance of absence of independent legal or financial advice - factors to be considered in relation to relief Legislation Cited: Consumer Credit (New South Wales) Act 1995 Consumer Credit (Queensland) Act 1994 Contracts Review Act 1980 National Consumer Credit Protection Act 2009 (Cth) Suitors' Fund Act 1951 Cases Cited: Beneficial Finance Corporation Ltd v Karavas (1991) 23 NSWLR 256 House v The King [1936] HCA 40; 55 CLR 499 Knezevic v Perpetual Trustees Victoria Ltd [2013] NSWCA 199 Maguire v Makaronis [1997] HCA 23; 188 CLR 449 Perpetual Trustee Company Ltd v Khoshaba [2006] NSWCA 41 Provident Capital Ltd v Papa [2013] NSWCA 36 Warren v Coombes [1979] HCA 9; 142 CLR 531 Category: Principal judgment Parties: Bendigo and Adelaide Bank Ltd (Appellant) Steve Karamihos (First Respondent) Aristea Karamihos (Second Respondent) Representation: Counsel: J Stoljar SC/R I Bellamy (Appellant) V B Hughston SC/J F Merkel (Respondents) Solicitors: Gadens (Appellant) Margiotta (Respondents) File Number(s): CA 2013/154093 Decision under appeal Jurisdiction: 9111 Citation: Steve Karamihos and Aristea Karamihos v Bendigo and Adelaide Bank Limited; Bendigo and Adelaide Bank Limited v Steve Karamihos and Aristea Karamihos [2013] NSWSC 172 Date of Decision: 2013-03-08 00:00:00 Before: Pembroke J File Number(s): SC 2012/00334829; 2009/14393