Paratei Pty Ltd v ING Bank (Australia) Limited; Sparks v Battaglia [2015] NSWSC 1368

Supreme Court New South Wales

Medium Neutral Citation: Paratei Pty Ltd v ING Bank (Australia) Limited; Sparks v Battaglia [2015] NSWSC 1368 Hearing dates: 24 and 25 November 2014, 13, 14, 15 and 16 July 2015 Date of orders: 17 September 2015 Decision date: 17 September 2015 Jurisdiction: Equity Before: Darke J Decision: Cross claims by guarantors and mortgagors dismissed. Orders to be made for possession of mortgaged properties. Judgments to be entered against guarantors and mortgagors. Catchwords: EQUITY – unconscionable conduct – guarantees and mortgages given by shareholders in support of debts of companies – whether special disability by reason of lack of involvement in management of companies and lack of knowledge or explanation of transactions – some of guarantees and mortgages executed under power of attorney – whether unconscionable of lender to enforce guarantees and mortgages

BANKING AND FINANCE – unconscionable conduct in connection with financial services – guarantees and mortgages given by shareholders in support of debts of companies – whether conduct of lender unconscionable in circumstances due to lack of knowledge or explanation of transactions – some of guarantees and mortgages executed under power of attorney – Australian Securities and Investments Commission Act 2001 (Cth), s 12CB

CONTRACTS – unjust contracts – guarantees and mortgages given by shareholders in support of debts of companies – whether contracts unjust in circumstances due to lack of knowledge or explanation of transactions – some of guarantees and mortgages executed under power of attorney – Contracts Review Act 1980 (NSW), ss 7,9 Legislation Cited: Contracts Review Act 1980 (NSW) ss 7, 9 Australian Securities and Investments Commission Act 2001 (Cth) s 12CB Cases Cited: Bakarich v Commonwealth Bank of Australia [2007] NSWCA 169; Blomley v Ryan (1956) 99CLR 362; Canty v Paperlinx Australia Pty Limited [2014] NSWCA 309; Commercial Bank of Australia v Amadio (1983) 151 CLR 447; Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392; [2013] HCA 25; Provident Capital Limited v Papa (2013) 84 NSWLR 231; [2013] NSWCA 36; Spina v Permanent Custodians Limited [2009] NSWCA 206; Taheri v Vitek [2014] NSWCA 209; Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389 West v AGC (Advances) Limited (1986) 5 NSWLR 610; Category: Principal judgment Parties: 2013/231527 ING Bank (Australia) Limited (first cross claimant/defendant to second cross claim) Florentina and Stefano Battaglia (sixth and seventh cross defendants; second cross claimants)