Private Mortgages Australia Pty Limited ACN 600 628 813 as trustee for the PMA Trust v Stever [2019] NSWSC 462

Supreme Court New South Wales

Medium Neutral Citation: Private Mortgages Australia Pty Limited ACN 600 628 813 as trustee for the PMA Trust v Stever [2019] NSWSC 462 Hearing dates: 26 February 2019 and 5, 8 March 2019 (further written submissions) Date of orders: 26 April 2019 Decision date: 26 April 2019 Jurisdiction: Equity Before: Henry J Decision: (1) Declare that the plaintiff has a caveatable interest in the land described in certificate of title folio number 2/843560, known as and situated at 102 Carrington Falls Road, Robertson NSW 2577. (2) Order that the operation of caveat number AJ331474 be extended until the payment of the judgment debt or further order of this Court (whichever is earlier). (3) Judgment for the plaintiff against the first and second defendants in the sum of $20,900. (4) Interest to be payable on the judgment sum in accordance with section 101 of the Civil Procedure Act 2005 (NSW). (5) The first and second defendants to pay the plaintiff's costs of the summons. Catchwords: CONTRACTS – construction and interpretation – whether fees stipulated in agreement are payable where loan did not proceed – whether fees stipulated for payment constitute a penalty – Andrews v Australia and New Zealand Banking Group Limited (2012) 247 CLR 205 applied

CONTRACTS – unjust contracts – Contracts Review Act 1980 (NSW) – where defendant chose not to read document – where defendant not a sophisticated businessperson LAND LAW – caveats – whether caveatable interest arose before fees became due and payable – extension of operation of caveat Legislation Cited: Contracts Review Act 1980 (NSW) ss 7, 9 Uniform Civil Procedure Rules 2005 (NSW) r 42.1 Civil Procedure Act 2005 (NSW) s 101 Real Property Act 1900 (NSW) ss 74F, 74K Cases Cited: Allen Taylor & Co Pty Ltd (t/as Boral Timber) v Harrison [2010] NSWSC 1021 Allen's Asphalt Pty Ltd v SPM Group Pty Ltd [2010] 1 Qld R 202 Andrews v Australia and New Zealand Banking Group Limited (2012) 247 CLR 205; [2012] HCA 30 Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR; [1973] HCA 36 Big Kahuna Holdings Pty Ltd v Kitar [2012] NSWSC 615 Break Fast Investments Pty Ltd v C&O Voukidis Pty Ltd [2011] NSWSC 991 Capital Finance Australia Limited v Sharpe Enterprises Pty Ltd and Others [2009] QSC 305 Clos Farming Estates P/L (Receivers & Managers Appointed) v Graham Rush Easton & Anor [2001] NSWSC 525 Dunlop Pneumatic Tyre Company v New Garage & Motor Company Limited [1914] UKHL 1; [1915] AC 79 Fast Fix Loans Pty Ltd v Samardzic [2011] NSWCA 260 Kingstone Constructions Pty Ltd v Crispel Pty Ltd (Supreme Court (NSW), 12 March 1991, unrep) Lawrence v Appleby [2001] NSWSC 649 McCann v Switzerland Insurance Australia Limited (2000) 203 CLR 579; [2000] HCA 65 Nemeth v Australian Litigation Funders Pty Ltd [2014] NSWCA 198 Paciocco v Australia and New Zealand Banking Group Limited (2016) 258 CLR 525; [2016] HCA 28 Provident Capital Ltd v Papa [2013] NSWCA 36 Ringrow Pty Ltd v BP Australia Pty Ltd (2005) 224 CLR 656; [2005] HCA 71 Technical Products Pty Ltd v State Government Insurance Office (Qld) (1989) 167 CLR 45; [1989] HCA 24 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 West v AGC (Advances) Ltd and Others (1986) 5 NSWLR 610 Texts Cited: JW Carter, Contract Law in Australia (LexisNexis Butterworths, 7th ed, 2018) Category: Principal judgment Parties: Private Mortgages Australia Pty Ltd ACN 600 628 813 as trustee for the PMA Trust (Plaintiff) Merril Stever (First Defendant) Bruce Maples (Second Defendant) Representation: Counsel: A Rogers (Plaintiff) S Philips (First and Second Defendants)