Sukkar v Sukkar [2019] NSWSC 691

Sukkar v Sukkar [2019] NSWSC 691

The contracts (Deed of Acknowledgement, Loan Agreement and Mortgage) executed by the first defendant/mother in favour of the plaintiff/son were unjust in the circumstances at the time they were made within the meaning of s 7(1) of the Contracts Review Act 1980 (NSW), due to the improvident nature of the transaction, the absence of any real debt, the influence and emotional pressure applied by the plaintiff, the imbalance in power, lack of true negotiation, and the vulnerability and trust of the first defendant. Relief is just and appropriate by refusing enforcement and declaring the contracts void; the mortgage is to be discharged. The plaintiff’s claim as ‘incumbrancer’ fails as a result.

Jurisdiction
Australia
Judgment Date
11 June 2019
Procedural Posture
Equity Proceeding Originating by Summons and Cross Claim / Principal Judgment at First Instance
Outcome
Relief granted to first defendant under Contracts Review Act. Plaintiff’s claim dismissed. Agreements set aside; mortgage to be discharged; cost orders for first defendant.
Legal Topics
['statutory Trust for Sale' 'co Ownership' 'unjust Contracts' 'undue Influence' 'enforcement of Mortgage' 'relief Under Contracts Review Act']
['equity' 'land Law' 'contracts'] ['statutory Trust for Sale' 'co Ownership' 'unjust Contracts' 'undue Influence' 'enforcement of Mortgage' 'relief Under Contracts Review Act']

Case Brief

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Procedural Posture

Equity Proceeding Originating by Summons and Cross Claim / Principal Judgment at First Instance

Legal Issues

  1. 1 ['Whether the contracts (Deed of Acknowledgement, Loan Agreement and Mortgage) executed by the first defendant in favour of the plaintiff were unjust within the meaning of s 7(1) of the Contracts Review Act 1980 (NSW)' 'Whether the plaintiff is entitled to appointment of trustees for sale under s 66G of the Conveyancing Act 1919 (NSW) as an ‘incumbrancer’/co-owner' 'Whether the obligations and mortgage should be set aside']

Ratio Decidendi

The contracts (Deed of Acknowledgement, Loan Agreement and Mortgage) executed by the first defendant/mother in favour of the plaintiff/son were unjust in the circumstances at the time they were made within the meaning of s 7(1) of the Contracts Review Act 1980 (NSW), due to the improvident nature of the transaction, the absence of any real debt, the influence and emotional pressure applied by the plaintiff, the imbalance in power, lack of true negotiation, and the vulnerability and trust of the first defendant. Relief is just and appropriate by refusing enforcement and declaring the contracts void; the mortgage is to be discharged. The plaintiff’s claim as ‘incumbrancer’ fails as a result.

Court Disposition

Relief granted to first defendant under Contracts Review Act. Plaintiff’s claim dismissed. Agreements set aside; mortgage to be discharged; cost orders for first defendant.

Orders

  • ['The plaintiff is to provide a duly executed Discharge of Mortgage to the first defendant.' 'Declaration that the Deed of Acknowledgement of Debt and Loan Facility Agreement executed in April 2017 are void and unenforceable.' 'The plaintiff’s Summons (relief under s 66G, Conveyancing Act 1919 (NSW)) is dismissed.'...