Hoho Property Pty Ltd v Bass Finance No 37 Pty Ltd [2023] NSWSC 411

Hoho Property Pty Ltd v Bass Finance No 37 Pty Ltd [2023] NSWSC 411

The lender failed to prove any amount was due as its Dobbs certificate did not conform to contractual requirements, so its cross-claim failed. The broker breached its contractual duty of care by failing to attend to clients' special disadvantage around English proficiency and by pressing for execution of complex documents without interpreter or sufficient advice, constituting unconscionable conduct. However, as the lender’s claim failed, no substantive damage was shown, and only nominal damages were awarded against the broker. There was no actionable duress as no unlawful pressure was found. The court would not set aside the finance contracts due to unconscionable conduct of broker alone,...

Jurisdiction
Australia
Judgment Date
21 April 2023
Procedural Posture
Principal Judgment / Judgment After Full Hearing
Outcome
Judgment for plaintiffs against the broker for nominal damages ($100). Judgment for broker against plaintiffs and cross-defendants for unpaid fee ($231,598). The lender’s cross-claim and claim for debt failed. All other relief dismissed. No orders as to costs between parties.
Legal Topics
['duress' 'unconscionable Conduct' 'breach of Contract' 'proper Execution of Certificates (dobbs Clause)' 'statutory Unconscionability' 'contracts Review Act']
['equity' 'commercial Law' 'contract Law' 'banking and Finance'] ['duress' 'unconscionable Conduct' 'breach of Contract' 'proper Execution of Certificates (dobbs Clause)' 'statutory Unconscionability' 'contracts Review Act']

Case Brief

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Procedural Posture

Principal Judgment / Judgment After Full Hearing

Legal Issues

  1. 1 ['Whether loan and security agreements, mortgages, and guarantee should be set aside for duress, illegitimate commercial pressure, or unconscionable conduct' 'Whether a Dobbs certificate provided by the lender was valid and conformed to contractual requirements' 'Whether the mortgage broker breached contractual obligations and engaged in unconscionable conduct' 'Whether the terms of finance documents were unjust under the Contracts Review Act 1980 (NSW)']

Ratio Decidendi

The lender failed to prove any amount was due as its Dobbs certificate did not conform to contractual requirements, so its cross-claim failed. The broker breached its contractual duty of care by failing to attend to clients' special disadvantage around English proficiency and by pressing for execution of complex documents without interpreter or sufficient advice, constituting unconscionable conduct. However, as the lender’s claim failed, no substantive damage was shown, and only nominal damages were awarded against the broker. There was no actionable duress as no unlawful pressure was found. The court would not set aside the finance contracts due to unconscionable conduct of broker alone,...

Court Disposition

Judgment for plaintiffs against the broker for nominal damages ($100). Judgment for broker against plaintiffs and cross-defendants for unpaid fee ($231,598). The lender’s cross-claim and claim for debt failed. All other relief dismissed. No orders as to costs between parties.

Orders

  • ['Judgment for the plaintiffs against the second defendant for nominal damages of $100.' 'Otherwise dismiss the Amended Summons filed on 21 June 2022.' 'In respect of the Cross-Summons filed on 29 July 2021, judgment for the cross-claimant against the cross-defendants in the amount of $231,598.' 'Dismiss the...