Mighell & Anor v Gargoura & Ors [2009] NSWSC 248

Mighell & Anor v Gargoura & Ors [2009] NSWSC 248

Relief granted under Contracts Review Act as the sale, option deed and tenancy agreement were harsh, unjust and improvident, producing substantive and procedural unfairness. The court declared the Option Deed and Tenancy Agreement void and awarded compensation for loss of equity in the property; unconscionability not established under general law but contract unjust under statute. Claims for mental distress and against other defendants failed for lack of evidence and proof.

Parties
First Plaintiff: Allan Henry Mighell (dec'd); Second Plaintiff: Jacqueline Mighell; First Defendant / Cross Claimant: Alain Gargoura; Second Defendant: Vadim Sergienko; Third Defendant: Sydney Investment Solutions; Cross Defendant / Cross Claimant: Sunny Auyeung; Cross Defendant / Cross Claimant: Nationwide Mortgage Corp
Jurisdiction
Australia
Judgment Date
03 April 2009
Procedural Posture
Principal Judgment / Final Judgment
Outcome
Judgment for plaintiff for compensation under Contracts Review Act. Option Deed and Tenancy Agreement declared void. Claims against Sergienko and SIS dismissed. Gargoura's cross-claim against Nationwide dismissed.
Legal Topics
Contracts Review Act, Unconscionable Conduct, Compensation, Void Contracts, Legal Advice
Contracts Equity Consumer Law Contracts Review Act Unconscionable Conduct Compensation Void Contracts Legal Advice

Case Brief

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Parties

Allan Henry Mighell (dec'd)

First Plaintiff

Jacqueline Mighell

Second Plaintiff

Alain Gargoura

First Defendant / Cross Claimant

Vadim Sergienko

Second Defendant

Sydney Investment Solutions

Third Defendant

Sunny Auyeung

Cross Defendant / Cross Claimant

Nationwide Mortgage Corp

Cross Defendant / Cross Claimant

Procedural Posture

Principal Judgment / Final Judgment

Legal Issues

  1. 1 Whether conduct of Mr Gargoura was unconscionable
  2. 2 Whether relief may be given under Contracts Review Act
  3. 3 Whether Option Deed and Tenancy Agreement are void

Ratio Decidendi

Relief granted under Contracts Review Act as the sale, option deed and tenancy agreement were harsh, unjust and improvident, producing substantive and procedural unfairness. The court declared the Option Deed and Tenancy Agreement void and awarded compensation for loss of equity in the property; unconscionability not established under general law but contract unjust under statute. Claims for mental distress and against other defendants failed for lack of evidence and proof.

Court Disposition

Judgment for plaintiff for compensation under Contracts Review Act. Option Deed and Tenancy Agreement declared void. Claims against Sergienko and SIS dismissed. Gargoura's cross-claim against Nationwide dismissed.

Orders

  • Option Deed and Residential Tenancy Agreement declared void ab initio under s 7(1)(b) Contracts Review Act
  • Gargoura ordered to pay compensation to Mrs Mighell in the sum of $199,149.36 plus interest at Supreme Court rates from settlement date