Gray v Latter [2014] NSWSC 122

Gray v Latter [2014] NSWSC 122

The transaction constituted by the contract for sale and the mortgage was unjust within the meaning of the Contracts Review Act 1980 (NSW) because the plaintiffs set and insisted on an exorbitant purchase price grossly above the property's true value, exploited the defendants' trust arising from their personal relationship with Mr Latter, knew the defendants' finances were constrained, and structured vendor finance in a way that allowed short-term weekly payments but made refinancing after two years illusory and default nigh inevitable. The National Credit Code and Australian Consumer Law claims failed because the plaintiffs were not conducting a credit business and were not engaged in...

Jurisdiction
Australia
Judgment Date
27 February 2014
Procedural Posture
Common Law Proceedings for Possession and Judgment on a Vendor Financed Mortgage, With Defences and Cross Claim for Statutory Relief / Principal Judgment After Hearing; Court Directed Submissions on the Form of Proposed Orders and Costs
Outcome
The Court found the transaction unjust under the Contracts Review Act 1980 (NSW) and indicated proposed relief, but made only procedural orders directing submissions on the form of orders and costs and granting liberty to apply.
Legal Topics
['contracts Review Act 1980 (nsw) Relief' 'unjust Contract' 'vendor Finance' 'sale of Land' 'mortgage Default' 'misrepresentation' 'trade or Commerce' 'credit Contract']
['contracts' 'mortgages' 'consumer Credit' 'consumer Law' 'property Law'] ['contracts Review Act 1980 (nsw) Relief' 'unjust Contract' 'vendor Finance' 'sale of Land' 'mortgage Default' 'misrepresentation' 'trade or Commerce' 'credit Contract']

Case Brief

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Procedural Posture

Common Law Proceedings for Possession and Judgment on a Vendor Financed Mortgage, With Defences and Cross Claim for Statutory Relief / Principal Judgment After Hearing; Court Directed Submissions on the Form of Proposed Orders and Costs

Legal Issues

  1. 1 ['Whether the mortgage was a credit contract to which Schedule 1 of the National Consumer Credit Protection Act 2009 (Cth) applied.' 'Whether the plaintiffs made misrepresentations to the defendants.' 'Whether the plaintiffs were engaged in trade or commerce within the meaning of Schedule 2 of the Competition and Consumer Act 2010 (Cth) when they sold the property.' 'Whether the contract for sale and mortgage, considered together as a single transaction, were unjust within the meaning of the Contracts Review Act 1980 (NSW).' 'Whether relief should be granted under the Contracts Review Act 1980 (NSW), and what form that relief should take.']

Ratio Decidendi

The transaction constituted by the contract for sale and the mortgage was unjust within the meaning of the Contracts Review Act 1980 (NSW) because the plaintiffs set and insisted on an exorbitant purchase price grossly above the property's true value, exploited the defendants' trust arising from their personal relationship with Mr Latter, knew the defendants' finances were constrained, and structured vendor finance in a way that allowed short-term weekly payments but made refinancing after two years illusory and default nigh inevitable. The National Credit Code and Australian Consumer Law claims failed because the plaintiffs were not conducting a credit business and were not engaged in...

Court Disposition

The Court found the transaction unjust under the Contracts Review Act 1980 (NSW) and indicated proposed relief, but made only procedural orders directing submissions on the form of orders and costs and granting liberty to apply.

Orders

  • ['Direct the parties to make any submissions as to the form of the proposed orders or as to costs in writing addressed to my associate on or before 4 pm 5 March 2014.' "Grant liberty to apply on 2 days' notice to my associate to restore the matter before me in the event that the parties want to address me orally on...