Provident Capital Ltd v Bortolin Papa (No 2) [2011] NSWSC 1266

Provident Capital Ltd v Bortolin Papa (No 2) [2011] NSWSC 1266

Although the loan agreements were unjust, it was not just to relieve Mrs Bortolin Papa entirely from their impact; the amount owing should be calculated by reference to an initial loan amount of $196,306.67 and ordinary interest at 10.99%, while provisions for penalty interest, compound interest and early repayment fees should not be enforced. Mr Caramanlis succeeded on the dismissed cross claim and was generally entitled to costs, but fairness required exclusion of costs connected with the defence and evidence affected by the Court's concerns about his conduct. A Bullock order against Provident was refused because Provident did not make it necessary or proper for Mrs Bortolin Papa to sue...

Jurisdiction
Australia
Judgment Date
27 October 2011
Procedural Posture
Costs and Final Orders Following Judgment on Loan Enforcement and Cross Claims / Further Hearing on Final Orders, Amount Owing, Costs, and Bullock Order After Provident Capital Ltd V Bortolin Papa (no 1) [2011] NSWSC 460
Outcome
Loan agreements varied or set aside; amount owing declared; Provident ordered to pay Mrs Bortolin Papa's costs of Provident's claim and her cross claim against Provident; cross claim against Mr Caramanlis dismissed; Mrs Bortolin Papa ordered to pay Mr Caramanlis' costs subject to specified exclusions; Bullock order...
Legal Topics
['calculation of Amount Owing Under Varied Loan Agreements' 'unjust Contracts' 'penalty Interest and Compound Interest' 'costs Discretion' 'bullock Order' 'solicitor Negligence Cross Claim']
['costs' 'contracts' 'mortgage Enforcement' 'contracts Review Act Relief'] ['calculation of Amount Owing Under Varied Loan Agreements' 'unjust Contracts' 'penalty Interest and Compound Interest' 'costs Discretion' 'bullock Order' 'solicitor Negligence Cross Claim']

Case Brief

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Procedural Posture

Costs and Final Orders Following Judgment on Loan Enforcement and Cross Claims / Further Hearing on Final Orders, Amount Owing, Costs, and Bullock Order After Provident Capital Ltd V Bortolin Papa (no 1) [2011] NSWSC 460

Legal Issues

  1. 1 ['Whether the varied loan agreements should permit Provident to recover interest, fees and charges according to the original terms despite the agreements being found unjust under the Contracts Review Act 1980.' 'Whether clauses imposing penalty interest, compound interest or an early repayment fee should be enforced.' 'Whether Mr Caramanlis should recover his costs of the dismissed cross claim despite findings critical of his evidence and services.' 'Whether Provident should be ordered under a Bullock order to pay any costs Mrs Bortolin Papa owed to Mr Caramanlis.']

Ratio Decidendi

Although the loan agreements were unjust, it was not just to relieve Mrs Bortolin Papa entirely from their impact; the amount owing should be calculated by reference to an initial loan amount of $196,306.67 and ordinary interest at 10.99%, while provisions for penalty interest, compound interest and early repayment fees should not be enforced. Mr Caramanlis succeeded on the dismissed cross claim and was generally entitled to costs, but fairness required exclusion of costs connected with the defence and evidence affected by the Court's concerns about his conduct. A Bullock order against Provident was refused because Provident did not make it necessary or proper for Mrs Bortolin Papa to sue...

Court Disposition

Loan agreements varied or set aside; amount owing declared; Provident ordered to pay Mrs Bortolin Papa's costs of Provident's claim and her cross claim against Provident; cross claim against Mr Caramanlis dismissed; Mrs Bortolin Papa ordered to pay Mr Caramanlis' costs subject to specified exclusions; Bullock order...

Orders

  • ['The Loan Agreements dated 5 April 2007 and 3 April 2008 entered into between the plaintiff and the defendant be varied or set aside as specified in the orders.' 'The Principal Sum in the First Loan Agreement be varied so that it is reduced to and deemed always to have been $196,306.67.' 'Clause 4.7 in the First...