Evolution Lifestyles Pty Ltd v Clarke (No 3) [2016] NSWSC 1237

Supreme Court New South Wales

Medium Neutral Citation: Evolution Lifestyles Pty Ltd v Clarke (No 3) [2016] NSWSC 1237 Hearing dates: 1, 2 August 2016 Date of orders: 06 September 2016 Decision date: 06 September 2016 Jurisdiction: Common Law Before: Wilson J Decision: 1. The statement of claim is dismissed.

2. The cross-claim is upheld and the contract set aside. Judgment is entered for the first defendant.

3. The plaintiff is to pay the first defendant the sum, calculated by reference to paragraph 173(5) of the Court's reasons, being a total sum of $114,889.93.

4. The first defendant is to give the plaintiff vacant possession of the Rutherford property within 30 days of today.

5. Costs in favour of the first defendant. Catchwords: REAL PROPERTY - possession of land – rent to buy mortgage - mortgage default – whether s 88 notice properly executed – National Credit Code

CONTRACTS - cross-claim – whether contract is unjust in all the circumstances – undue influence - Contracts Review Act 1980 (NSW) Legislation Cited: Consumer Credit (New South Wales) Code, s 80 Contracts Review Act 1980 (NSW), ss 7, 9 Conveyancing Act 1919 (NSW), s 55 National Consumer Credit Protection Act 2009 (Cth), Sch 1, s 4 Cases Cited: Evolution Lifestyles Pty Limited atf Evolution Property Trust v Clarke (No 2) [2016] NSWSC 769 Monas v Perpetual Trustees Victoria [2011] NSWCA 417 Riz v Perpetual Trustee Australia Ltd [2007] NSWSC 1153; (2008) NSW Conv R 56-198 Category: Principal judgment Parties: Evolution Lifestyles Pty Ltd (Plaintiff) Toni Maria Clarke (First Defendant) Shayne Raymond Tapper (Second defendant) Representation: Counsel: M Klooster (Plaintiff) P Batley (First Defendant) No Appearance of Second Defendant