Michalopoulos v Perpetual Trustees Victoria Ltd & Anor [2010] NSWSC 1450

Michalopoulos v Perpetual Trustees Victoria Ltd & Anor [2010] NSWSC 1450

The plaintiffs' claims against Perpetual and Permanent for unconscionable conduct and unjust contract fail, as neither Perpetual, Permanent, nor their agents took unconscientious advantage of the plaintiffs' disadvantage or engaged in conduct meeting the required threshold for statutory or equitable relief; however, as $100,000 from the second (Permanent) loan was disbursed without plaintiffs’ authority, Permanent can only recover $650,000 plus associated interest from the plaintiffs and the mortgage secures only that sum. The Mortgage Group is liable to Permanent for misleading or deceptive conduct in submitting false information with the second loan application, with damages fixed at...

Jurisdiction
Australia
Judgment Date
16 December 2010
Procedural Posture
Equity Proceeding / Final Judgment After Hearing
Outcome
Plaintiffs' claims against Perpetual and Permanent dismissed except as to the $100,000 not authorised; declaration that the Permanent mortgage secures only $650,000; orders for possession in favour of Permanent; Permanent awarded damages against The Mortgage Group; cross-claims otherwise dismissed; short minutes of...
Legal Topics
['unconscionable Conduct (trade Practices Act)' 'misleading or Deceptive Conduct' 'unjust Contracts (contracts Review Act)' 'agency' 'mortgage Lending' "breach of Solicitor's Retainer" 'proportionate Liability']
['contract Law' 'equity' 'trade Practices' 'banking and Finance'] ['unconscionable Conduct (trade Practices Act)' 'misleading or Deceptive Conduct' 'unjust Contracts (contracts Review Act)' 'agency' 'mortgage Lending' "breach of Solicitor's Retainer" 'proportionate Liability']

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Procedural Posture

Equity Proceeding / Final Judgment After Hearing

Legal Issues

  1. 1 ['Whether the lender (Perpetual/ Permanent) engaged in unconscionable conduct under ss 51AA, 51AB or 51AC of the Trade Practices Act 1974 (Cth)' "Whether the loan and mortgage contracts were 'unjust' under the Contracts Review Act 1980 (NSW)" 'Whether false information in the loan application was known or ought to have been known by lender or agent' "Whether a $100,000 payment from the second loan was made without the plaintiffs' authority" 'Liability of intermediaries/agents for misleading or deceptive conduct']

Ratio Decidendi

The plaintiffs' claims against Perpetual and Permanent for unconscionable conduct and unjust contract fail, as neither Perpetual, Permanent, nor their agents took unconscientious advantage of the plaintiffs' disadvantage or engaged in conduct meeting the required threshold for statutory or equitable relief; however, as $100,000 from the second (Permanent) loan was disbursed without plaintiffs’ authority, Permanent can only recover $650,000 plus associated interest from the plaintiffs and the mortgage secures only that sum. The Mortgage Group is liable to Permanent for misleading or deceptive conduct in submitting false information with the second loan application, with damages fixed at...

Court Disposition

Plaintiffs' claims against Perpetual and Permanent dismissed except as to the $100,000 not authorised; declaration that the Permanent mortgage secures only $650,000; orders for possession in favour of Permanent; Permanent awarded damages against The Mortgage Group; cross-claims otherwise dismissed; short minutes of...

Orders

  • ["Plaintiffs' claim against Perpetual dismissed." "Permanent's cross-claims against National Lending Solutions and Perpetual dismissed." 'Declaration: Principal amount owing under the loan to Permanent is $650,000 (not $750,000); mortgage secures $650,000 plus interest and charges.' 'Order for possession of Birrell...