Perpetual Trustee Company Limited v Bowie [2015] NSWSC 328

Supreme Court New South Wales

Medium Neutral Citation: Perpetual Trustee Company Limited v Bowie [2015] NSWSC 328 Hearing dates: 24 and 25 March 2015 Decision date: 31 March 2015 Jurisdiction: Common Law Before: Ball J Decision: 1. The defendant give the plaintiff possession of all the land comprised in certificate of title folio identifier 123/200508 being the land situated at and known as xxxx, Terrigal in the State of New South Wales (the Terrigal Property);

2. The plaintiff has leave to issue a writ of possession in respect of the Terrigal Property;

3. Judgment for the plaintiff against the defendant for the sum of $768,567.61;

4. The cross-claimant's cross-claim is dismissed;

5. The defendant pay the plaintiff's costs of the proceedings. Catchwords: REAL PROPERTY - Torrens title - possession of land pursuant to registered mortgage CONTRACTS - general contractual principles - harsh and unconscionable contracts and statutory remedies - Contracts Review Act 1980 (NSW) - low-doc and no-doc loans - whether loan agreement was unjust in all the circumstances at the time of entry into the agreement - whether lender required to ascertain suitability of loan to borrower - whether lender had constructive knowledge of borrower's personal and financial circumstances through a mortgage broker TORTS - negligence - whether lender under duty of care to prudently assess whether borrower had reasonable prospects of adequately servicing proposed loan - no duty found to exist Legislation Cited: Contracts Review Act 1980 (NSW) Corporations Act 2001 (Cth) Financial Services Reform Act 2001 (Cth) National Credit Code Real Property Act 1900 (NSW) Cases Cited: Esanda Finance Corporation Ltd v Tong (1997) 41 NSWLR 482 Hogan v Howard Finance Ltd (1987) ASC 55-594 Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd [1986] AC 80 Tomlin v Ford Credit Australia Ltd [2005] NSWSC 540 West v AGC (Advances) Ltd (1986) 5 NSWLR 610 Category: Principal judgment Parties: Perpetual Trustee Company Limited (Plaintiff) Patricia Ruth Bowie (Defendant) Representation: Counsel: P Newton (Plaintiff) In Person (Defendant)