Kaji Australia Pty Ltd v Glover (No. 4) [2019] NSWSC 1779

Kaji Australia Pty Ltd v Glover (No. 4) [2019] NSWSC 1779

The plaintiffs are entitled to possession of the land and judgment for the sum owing under the loan agreement and mortgage. The defendant’s claims of unconscionability, unjustness under the Contracts Review Act, statutory unconscionability, misleading or deceptive conduct, and fraud/conspiracy against the cross-defendants failed. The loan was not tainted by unconscionability; the defendant had independent legal advice, there was no undue influence or special disadvantage, and any deception was by the defendant and not the plaintiffs or their agents. The cross-claim is dismissed.

Parties
First Plaintiff: Kaji Australia Pty Ltd; Second Plaintiff: William Bradley Webster; Defendant/cross Claimant: Johann Benson Glover; Third Cross Defendant: Mercia Financial Solutions Pty Ltd; Fourth Cross Defendant: Richard Nicholson; Fifth Cross Defendant: Rodney Shields
Jurisdiction
Australia
Judgment Date
17 December 2019
Procedural Posture
Principal Judgment / Judgment After Final Hearing
Outcome
Plaintiffs succeeded; cross-claim of the defendant dismissed.
Legal Topics
Possession of Land, Unconscionable Conduct, Unjust Contract, Misleading or Deceptive Conduct, Fraud, Conspiracy, Loan and Mortgage Enforcement
Land Law Consumer Law Contract Tort Possession of Land Unconscionable Conduct Unjust Contract Misleading or Deceptive Conduct +3 more

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Parties

Kaji Australia Pty Ltd

First Plaintiff

William Bradley Webster

Second Plaintiff

Johann Benson Glover

Defendant/cross Claimant

Mercia Financial Solutions Pty Ltd

Third Cross Defendant

Richard Nicholson

Fourth Cross Defendant

Rodney Shields

Fifth Cross Defendant

Procedural Posture

Principal Judgment / Judgment After Final Hearing

Legal Issues

  1. 1 Whether the plaintiffs are entitled to possession of the land and judgment for the amount owing under the loan agreement and mortgage
  2. 2 Whether the loan agreement and mortgage are unconscionable or unjust under general law or statute
  3. 3 Whether the cross-defendants engaged in misleading or deceptive conduct

Ratio Decidendi

The plaintiffs are entitled to possession of the land and judgment for the sum owing under the loan agreement and mortgage. The defendant’s claims of unconscionability, unjustness under the Contracts Review Act, statutory unconscionability, misleading or deceptive conduct, and fraud/conspiracy against the cross-defendants failed. The loan was not tainted by unconscionability; the defendant had independent legal advice, there was no undue influence or special disadvantage, and any deception was by the defendant and not the plaintiffs or their agents. The cross-claim is dismissed.

Court Disposition

Plaintiffs succeeded; cross-claim of the defendant dismissed.

Orders

  • Plaintiffs must bring in short minutes to give effect to the judgment.
  • Short minutes to identify amount owing to the date of judgment at the lower rate of interest.