Manso & anor v David & ors [2003] NSWSC 905

Manso & anor v David & ors [2003] NSWSC 905

The plaintiffs' claims based on the alleged provision of financial services or products under the ASIC Act and unconscionable conduct under the Trade Practices Act failed because making a loan or taking a mortgage in these circumstances does not amount to providing a 'financial product' or 'financial service' as statutorily defined, nor were the services supplied for the purpose of trade or commerce. No duty of care arose where neither entity gave nor was asked for advice. The Contracts Review Act claim was inadequately pleaded with no particulars. Accordingly, the relevant paragraphs of the statement of claim were struck out and the claims dismissed, with liberty to replead under the...

Parties
First Plaintiff: Fudor Manso; Second Plaintiff: Joseph Benjamin; First Defendant: Fred David; Second Defendant: Suzie David; Third Defendant: Paula Manuelpilla Dominic; Fourth Defendant: Linda John Gloria Romano; Fifth Defendant: Phillip Pham; Sixth Defendant: Alexander ATIC; Seventh Defendant: Perpetual Trustees Australia Limited; Eighth Defendant: Royal Guardian Mortgage Corporation Pty Limited
Jurisdiction
Australia
Judgment Date
03 October 2003
Procedural Posture
Civil / Interlocutory Application—strike Out/summary Judgment
Outcome
Paragraphs 23, 24, 25, and 26 of the plaintiffs' Amended Statement of Claim are struck out; the actions based on those paragraphs are dismissed; leave granted to second plaintiff to replead under the Contracts Review Act within 28 days; plaintiffs to pay costs of the seventh and eighth defendants on the motion.
Legal Topics
Strikeout of Pleadings, Summary Judgment, Unconscionable Conduct, Provision of Financial Services and Products, Negligence—pure Economic Loss, Law of Mortgages, Unjust Contracts
Practice and Procedure Contracts Consumer Law Negligence Equity Strikeout of Pleadings Summary Judgment Unconscionable Conduct +4 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 35 Party arguments 2 Amounts and remedies 5
Sign in to unlock

Parties

Fudor Manso

First Plaintiff

Joseph Benjamin

Second Plaintiff

Fred David

First Defendant

Suzie David

Second Defendant

Paula Manuelpilla Dominic

Third Defendant

Linda John Gloria Romano

Fourth Defendant

Phillip Pham

Fifth Defendant

Alexander ATIC

Sixth Defendant

Perpetual Trustees Australia Limited

Seventh Defendant

Royal Guardian Mortgage Corporation Pty Limited

Eighth Defendant

Procedural Posture

Civil / Interlocutory Application—strike Out/summary Judgment

Legal Issues

  1. 1 Whether the making of a loan and/or mortgage constitutes the provision of a 'financial service' or 'financial product' under the Australian Securities and Investment Commission Act 2001
  2. 2 Whether the loan agreement and mortgage supply of services falls within Trade Practices Act 1974 s 51AC (unconscionable conduct)
  3. 3 Whether Perpetual Trustees or Royal Guardian owed a duty of care to the plaintiffs (in negligence)

Ratio Decidendi

The plaintiffs' claims based on the alleged provision of financial services or products under the ASIC Act and unconscionable conduct under the Trade Practices Act failed because making a loan or taking a mortgage in these circumstances does not amount to providing a 'financial product' or 'financial service' as statutorily defined, nor were the services supplied for the purpose of trade or commerce. No duty of care arose where neither entity gave nor was asked for advice. The Contracts Review Act claim was inadequately pleaded with no particulars. Accordingly, the relevant paragraphs of the statement of claim were struck out and the claims dismissed, with liberty to replead under the...

Court Disposition

Paragraphs 23, 24, 25, and 26 of the plaintiffs' Amended Statement of Claim are struck out; the actions based on those paragraphs are dismissed; leave granted to second plaintiff to replead under the Contracts Review Act within 28 days; plaintiffs to pay costs of the seventh and eighth defendants on the motion.

Orders

  • Strike out paragraphs 23, 24, 25 and 26 of the plaintiffs' Amended Statement of Claim.
  • Dismiss actions by the plaintiffs based on those paragraphs (under ss 51AC of Trade Practices Act 1974 and ss 12CA, 12CB, 12ED of ASIC Act 2001 or equivalent).