Yakiti Pty Ltd v MacDonald [2019] NSWSC 1772

Supreme Court New South Wales

Medium Neutral Citation: Yakiti Pty Ltd v MacDonald [2019] NSWSC 1772 Hearing dates: 6-8, 18-19 February, 9 April 2019. Date of orders: 12 December 2019 Decision date: 12 December 2019 Jurisdiction: Common Law Before: Hamill J Decision: (1) The plaintiff is entitled to succeed on its statement of claim. (2) The cross-claim will be dismissed. (3) The plaintiff is entitled to possession of the two parcels of land referred to in the statement of claim and to an order for leave to issue the writs of possession. (4) The plaintiff is entitled to recover the debts under the two loan agreements together with interest in accordance with the loan agreement until the date of judgment and thereafter in accordance with s 100 of the Civil Procedure Act 2005 (NSW). (5) The defendant/cross claimant to pay the costs of the plaintiff and cross-defendants. (6) Direct that the plaintiff is to file short minutes of order reflecting those findings and supporting calculations within 7 days. If the defendant takes issue with any of the form of orders it should exercise liberty to apply within 3 working days of the draft orders being filed. In the absence of that, the Court will pronounce the orders at a time to be notified to the parties. Catchwords: CIVIL LAW – loans secured by mortgage – loans not repaid – cross-claim – negotiations to take over business to which loan money advanced – whether binding agreement reached – where division of shares not settled – whether essential term of agreement – where borrower ill and hospitalised – unconscionability – whether lender acted unconscionably in proceeding in the absence of the borrower – where business failing – losing money hand over fist – where borrower failed to respond to urgent message – where other communications demonstrate capacity to communicate – evidence inconsistent unconvincing and implausible – double satisfaction – Adam Smith School of Economics