Perpetual Limited v Onesemo [2010] NSWSC 43

Perpetual Limited v Onesemo [2010] NSWSC 43

The proposed further amended cross claim raised real issues in dispute, including alleged fraudulent documents, the relationship between the lender, broker and solicitor in the loan process, and potential remedies under the Contracts Review Act, Consumer Credit Code and for unconscionable conduct. The fraud allegations against the mortgage broker identified the relevant employee and documents with sufficient precision, the claims against the lender were properly pleaded because unjustness under the Contracts Review Act did not require fraud or knowledge by the lender, and the solicitor pleading should be left for trial because it depended on evidence about when the retainer arose....

Jurisdiction
Australia
Judgment Date
11 February 2010
Procedural Posture
Common Law Division Possession Proceedings; Motion for Leave to File a Further Amended Cross Claim / Notice of Motion Filed 29 December 2009 Seeking Review of Registrar Greenwood's Decision of 3 December 2009 and Leave to File and Serve a Further Amended Cross Claim
Outcome
Leave granted to the defendant/first cross claimant to file a further amended cross claim; costs reserved.
Legal Topics
['amendment of Pleadings' 'leave to File Further Amended Cross Claim' 'fraud Pleading Particulars' 'case Management and Dictates of Justice' 'contracts Review Act Unjust Contract Claim' 'subpoena']
['civil Procedure' 'pleadings' 'mortgage Possession' 'contracts Review' 'consumer Credit' 'unconscionable Conduct'] ['amendment of Pleadings' 'leave to File Further Amended Cross Claim' 'fraud Pleading Particulars' 'case Management and Dictates of Justice' 'contracts Review Act Unjust Contract Claim' 'subpoena']

Case Brief

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Procedural Posture

Common Law Division Possession Proceedings; Motion for Leave to File a Further Amended Cross Claim / Notice of Motion Filed 29 December 2009 Seeking Review of Registrar Greenwood's Decision of 3 December 2009 and Leave to File and Serve a Further Amended Cross Claim

Legal Issues

  1. 1 ['Whether the defendant/first cross claimant should be granted leave to file a further amended cross claim' 'Whether the proposed pleading of fraud against the mortgage broker was adequate' 'Whether claims against the lender under the Contracts Review Act, Consumer Credit Code and unconscionable conduct were properly pleaded without alleging fraud or knowledge against the lender' 'Whether the pleading of breach of fiduciary duty against the solicitor should be struck out' 'Whether the delay and proximity of the trial date meant the dictates of justice required refusal of the amendment']

Ratio Decidendi

The proposed further amended cross claim raised real issues in dispute, including alleged fraudulent documents, the relationship between the lender, broker and solicitor in the loan process, and potential remedies under the Contracts Review Act, Consumer Credit Code and for unconscionable conduct. The fraud allegations against the mortgage broker identified the relevant employee and documents with sufficient precision, the claims against the lender were properly pleaded because unjustness under the Contracts Review Act did not require fraud or knowledge by the lender, and the solicitor pleading should be left for trial because it depended on evidence about when the retainer arose....

Court Disposition

Leave granted to the defendant/first cross claimant to file a further amended cross claim; costs reserved.

Orders

  • ['Leave is granted to the defendant/first cross claimant to file a further amended cross claim.' 'The further amended cross claim is to be filed and served by 12 February 2010.' 'The cross defendants are to file and serve defences to the further amended cross claim by 11 March 2010.' 'The defendant/first cross...