First Mortgage Managed Investments Pty Limited v Pittman [2014] NSWCA 110

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: First Mortgage Managed Investments Pty Limited v Pittman [2014] NSWCA 110 Hearing dates: 6, 7 November 2013 Decision date: 07 April 2014 Before: Beazley P at [1]; Gleeson JA at [2]; Sackville AJA at [3] Decision: 1 Appeal allowed in part. 2 Direct the parties to file within 14 days agreed short minutes of order giving effect to these reasons for judgment. 3 In default of agreement: (a) the appellant (FMI) file and serve within 14 days proposed short minutes of order, together with brief written submissions in support; (b) the respondents file and serve within a further 14 days their proposed short minutes of order, together with brief written submissions in support. 4 There be no order as to the 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: Contracts Review Act 1980 - whether finding that loan contract and third party mortgages were unjust should be upheld - whether primary Judge erred in declaring the loan contract and mortgages to be wholly unenforceable - whether allowance should have been made for moneys used by the borrowers to discharge existing mortgages - whether the earlier mortgages were themselves unjust Legislation Cited: Contracts Review Act 1980 Cases Cited: Collier v Morlend Finance Corporation (Victoria) Pty Ltd [1989] ANZ ConvR 515; 6 BPR 13,337 Elkofairi v Permanent Trustee Co Ltd [2002] NSWCA 413; 11 BPR 20,841 Esanda Finance Corporation Ltd v Tong (1997) 41 NSWLR 482; (2002) 11 BPR 20,841 Fox v Percy [2003] HCA 22; 214 CLR 118 House v The King [1936] HCA 40; 55 CLR 499 S H Lock (Australia) Ltd v Kennedy (1988) 12 NSWLR 482 St George Bank Ltd v Trimarchi [2004] NSWCA 120 Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41; 14 BPR 26,639 Provident Capital Ltd v Papa [2013] NSWCA 36; 84 NSWLR 231 Vadasz v Pioneer Concrete (SA) Pty Ltd [1995] HCA 14; 184 CLR 102 Warren v Coombes [1979] HCA 9; 142 CLR 531 Category: Principal judgment Parties: First Mortgage Managed Investments Ltd (Appellant) Basil James Pittman (First Respondent) Rex Neil Webster (Second Respondent) Representation: Counsel: AG Bell SC / KS Howe (Appellant) TF Robertson SC / JE Lazarus (Respondents) Solicitors: Bransgroves Lawyers (Appellant) Brock Partners Lawyers (Respondents) File Number(s): 2012/396832 Decision under appeal Jurisdiction: 9111 Citation: First Mortgage Managed Investments Ltd v Pittman [2012] NSWSC 1332 Date of Decision: 2012-11-01 00:00:00 Before: Garling J File Number(s): 2008/288217