Marsden v DCL Developments Pty Ltd (No. 3) [2016] NSWSC 1795

Marsden v DCL Developments Pty Ltd (No. 3) [2016] NSWSC 1795

Rabobank did not act unconscionably or in breach of the Banking Code or contract; the imposition of the borrowing limitation and reduction in loan term was reasonable in the circumstances, did not cause recoverable loss to DCL, and reflected due protection of the lender's position. The defendants failed to prove unconscionable conduct, any enforceable obligation not complied with, or damage causally linked to the impugned conditions. The guarantee given by Mr Howe was valid and not set aside. Orders for possession and costs in favour of the plaintiffs/receivers are therefore made.

Parties
First Plaintiff: Peter William Marsden (in his capacity as Joint & Several Receiver and Manager of DCL Developments ACN 068 138 643 (Receivers and Managers appointed)); Second Plaintiff: Richard Andrew Stone (in his capacity as Joint & Several Receiver and Manager of DCL Developments ACN 068 138 643 (Receivers and Managers appointed)); Third Plaintiff: Andrew Bowcher (in his capacity as Joint & Several Receiver and Manager of DCL Developments ACN 068 138 643 (Receivers and Managers appointed)); First Defendant: DCL Developments (Receivers & Managers appointed); Second Defendant: Stuart Howe; Third Defendant: Linda Howe
Jurisdiction
Australia
Judgment Date
16 December 2016
Procedural Posture
Principal Judgment / Post Trial Judgment (final Orders and Detailed Reasons)
Outcome
Judgment for the Plaintiffs for possession; cross-claim dismissed; costs to Plaintiffs/Cross-Defendants.
Legal Topics
Possession of Land, Mortgages, Unconscionable Conduct, Banking Code of Practice, Receivership, Contracts Review, Injunctions, Equitable Remedies
Real Property Banking and Finance Commercial Law Possession of Land Mortgages Unconscionable Conduct Banking Code of Practice Receivership +3 more

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Parties

Peter William Marsden (in his capacity as Joint & Several Receiver and Manager of DCL Developments ACN 068 138 643 (Receivers and Managers appointed))

First Plaintiff

Richard Andrew Stone (in his capacity as Joint & Several Receiver and Manager of DCL Developments ACN 068 138 643 (Receivers and Managers appointed))

Second Plaintiff

Andrew Bowcher (in his capacity as Joint & Several Receiver and Manager of DCL Developments ACN 068 138 643 (Receivers and Managers appointed))

Third Plaintiff

DCL Developments (Receivers & Managers appointed)

First Defendant

Stuart Howe

Second Defendant

Linda Howe

Third Defendant

Procedural Posture

Principal Judgment / Post Trial Judgment (final Orders and Detailed Reasons)

Legal Issues

  1. 1 Whether the lender (Rabobank) acted unconscionably or in breach of statutory or contractual obligations in imposing loan conditions
  2. 2 Whether the Banking Code clause 28.2 imposed enforceable obligations and whether breached
  3. 3 Whether conditions imposed by the lender rendered the relevant loan and guarantee voidable

Ratio Decidendi

Rabobank did not act unconscionably or in breach of the Banking Code or contract; the imposition of the borrowing limitation and reduction in loan term was reasonable in the circumstances, did not cause recoverable loss to DCL, and reflected due protection of the lender's position. The defendants failed to prove unconscionable conduct, any enforceable obligation not complied with, or damage causally linked to the impugned conditions. The guarantee given by Mr Howe was valid and not set aside. Orders for possession and costs in favour of the plaintiffs/receivers are therefore made.

Court Disposition

Judgment for the Plaintiffs for possession; cross-claim dismissed; costs to Plaintiffs/Cross-Defendants.

Orders

  • Judgment for the Plaintiffs for possession of the land known as 'Ruby Hill' at 47 Yarrol Road, Kootingal in the State of New South Wales being the whole of the land contained in folio identifiers 1/355485, 2/355485 and 31/635403.
  • The cross-claim filed 22 July 2016 is dismissed.