CBA v Silkman [2001] NSWSC 582

CBA v Silkman [2001] NSWSC 582

The defendant understood what a mortgage was and knew that failure to repay could allow the Bank to recover the money and sell the property; the mortgage documents plainly charged the home, and the defendant knowingly obtained the funds, including through fraudulent conduct involving the bank manager. None of the Contracts Review Act matters was made out, and the defendant was not under any special disability for an unconscionable dealing claim. The Defence and Cross-claim therefore failed, although liability under the Dealwind mortgage was confined to a principal sum of $55,000 plus interest, costs and fees.

Jurisdiction
Australia
Judgment Date
06 July 2001
Procedural Posture
Claim to Enforce Mortgages and Guarantee, Including Possession and Judgment for Sums Secured, With Defence and Cross Claim Under the Contracts Review Act 1980 / Judgment After Hearing
Outcome
Defence and Cross-claim dismissed; plaintiff entitled to possession and judgment for amounts to be determined, with Dealwind liability calculated on a principal sum of $55,000 plus interest, costs and fees.
Legal Topics
['default Under Mortgages' 'possession' 'guarantee' 'contracts Review Act 1980' 'unjust Contract' 'unconscionable Dealing' 'special Disability']
['mortgages' 'contracts' 'equity'] ['default Under Mortgages' 'possession' 'guarantee' 'contracts Review Act 1980' 'unjust Contract' 'unconscionable Dealing' 'special Disability']

Case Brief

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Procedural Posture

Claim to Enforce Mortgages and Guarantee, Including Possession and Judgment for Sums Secured, With Defence and Cross Claim Under the Contracts Review Act 1980 / Judgment After Hearing

Legal Issues

  1. 1 ["Whether the mortgages and guarantee should be enforced despite the defendant's claim that he did not understand that the loans were secured over his home." 'Whether the mortgages or arrangements were unjust contracts within the meaning of the Contracts Review Act 1980.' 'Whether the transactions should be set aside as unconscionable under principles including Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447.' "Whether the defendant's liability under the Dealwind Pty Limited guaranteed loan was limited to $55,000 plus interest, costs and fees."]

Ratio Decidendi

The defendant understood what a mortgage was and knew that failure to repay could allow the Bank to recover the money and sell the property; the mortgage documents plainly charged the home, and the defendant knowingly obtained the funds, including through fraudulent conduct involving the bank manager. None of the Contracts Review Act matters was made out, and the defendant was not under any special disability for an unconscionable dealing claim. The Defence and Cross-claim therefore failed, although liability under the Dealwind mortgage was confined to a principal sum of $55,000 plus interest, costs and fees.

Court Disposition

Defence and Cross-claim dismissed; plaintiff entitled to possession and judgment for amounts to be determined, with Dealwind liability calculated on a principal sum of $55,000 plus interest, costs and fees.

Orders

  • ['The Defence and Cross-claim fail.' 'The plaintiff is entitled to an order for possession.' 'The plaintiff is entitled to judgment for amounts to be determined after recalculation.' 'The matter is stood over to a date next week to enable judgment to be entered for appropriate amounts.' 'A warrant for possession is...