Arab Bank of Australia Ltd v Jeitani [2016] NSWSC 617

Supreme Court New South Wales

Medium Neutral Citation: Arab Bank of Australia Ltd v Jeitani [2016] NSWSC 617 Hearing dates: 8 - 10 September 2015 Decision date: 13 May 2016 Jurisdiction: Common Law Before: Davies J Decision: The parties should bring in Short Minutes. Catchwords: REAL PROPERTY – possession of land – mortgages - mortgagor in default – sale of properties by mortgagee in possession – GST gross-up clauses in sale contracts – mortgagee required to pay GST on sales – whether gross-up clauses should have been enforced – whether any duty owed in that regard to guarantor of mortgagor – guarantee not called upon – undertaking by mortgagee not to call on guarantor – whether guarantor suffered loss by failure to enforce gross-up clauses REAL PROPERTY – mortgages – rights of mortgagor – to discharge the mortgage – whether loan and mortgage regulated under the Consumer Credit Code – Business Purpose Declaration signed by mortgagor – whether lender knew or had to reason to believe the loan was wholly or predominantly for personal, domestic or household purposes – refusal by mortgagee to discharge mortgage on the basis that mortgage secured other loans – whether mortgagee acted unreasonably – whether obligation on mortgagor's part to tender amount owing to mortgagee in the face of refusal to discharge Legislation Cited: Consumer Credit (New South Wales) Act 1995 (NSW) Corporations Act 2001 (Cth) Duties Act 1997 (NSW) Goods and Services Tax Act 1999 (Cth) Cases Cited: Beckley v Consumer, Trader and Tenancy Tribunal [2009] NSWSC 703 Challenge Bank Ltd v Hodgekiss (1995) 7 BPR 14, 399; [1996] ANZConvR 364 Chaplin v Young (1864) 33 Beav 330; 55 ER 395 China and South Sea Bank Ltd v Tan [1990] 1 AC 536 Coughlan v George [2003] NSWSC 512; (2003) 11 BPR 20,919 GE Capital Australia v Davis [2002] NSWSC 1146; (2002) 180 FLR 250 Jones v Bank of New South Wales (Unreported – Supreme Court of Queensland – 19 April 1979) Permanent Custodians Ltd v AGB Developments Pty Ltd [2010] NSWSC 540 Ultimate Property Group Pty Ltd v Lord [2004] NSWSC 114; (2004) 60 NSWLR 646 Upton v Perpetual Trustees [2007] FCAFC 57; (2007) 158 FCR 118 Westpac Banking Corporation v Kingsland (1991) 26 NSWLR 700 Texts Cited: Fisher & Lightwood, Law of Mortgage (3rd Australian Edition, Lexis Nexis Butterworths, 2014) Category: Principal judgment Parties: Arab Bank of Australia Ltd (Plaintiff / Cross-Defendant) Steven Jeitani (First Defendant) Mouhsen Gittany (Second Defendant / Cross-Claimant) Representation: Counsel: T Castle & A Kaufmann (Plaintiff / Cross-Defendant) No appearance (First Defendant) R J Carruthers (Second Defendant / Cross-Claimant)