Pasternacki v Correy [1999] NSWSC 119

Pasternacki v Correy [1999] NSWSC 119

Given the plaintiffs' knowledge that the loan was for the benefit of Henry Correy, Mrs Correy's lack of benefit from or ability to repay the loan, and the plaintiffs' failure to ensure she received proper advice, it is just to set aside the mortgage under the Contracts Review Act 1980, relieving Mrs Correy of personal liability and freeing her home from encumbrance.

Jurisdiction
Australia
Judgment Date
26 February 1999
Procedural Posture
Relief Application After Finding of Unjust Contract / Judgment Upon Relief Following Prior Liability Finding
Outcome
Mortgage set aside. Judgment for 1st & 3rd defendants. Judgment for plaintiffs against 2nd defendant.
Legal Topics
['unjust Contract' 'contracts Review Act 1980 (nsw)' 'third Party Mortgages']
['contract Law' 'equity'] ['unjust Contract' 'contracts Review Act 1980 (nsw)' 'third Party Mortgages']

Case Brief

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Procedural Posture

Relief Application After Finding of Unjust Contract / Judgment Upon Relief Following Prior Liability Finding

Legal Issues

  1. 1 ['Whether to set aside a mortgage following a finding of unjust contract under the Contracts Review Act 1980 (NSW)' 'Whether the plaintiffs are entitled to recover the amount advanced plus interest from Mrs Correy outside the mortgage' 'Appropriate form of relief for Mrs Correy under the Contracts Review Act 1980']

Ratio Decidendi

Given the plaintiffs' knowledge that the loan was for the benefit of Henry Correy, Mrs Correy's lack of benefit from or ability to repay the loan, and the plaintiffs' failure to ensure she received proper advice, it is just to set aside the mortgage under the Contracts Review Act 1980, relieving Mrs Correy of personal liability and freeing her home from encumbrance.

Court Disposition

Mortgage set aside. Judgment for 1st & 3rd defendants. Judgment for plaintiffs against 2nd defendant.

Orders

  • ["Mrs Correy's home is freed of the encumbrance of the mortgage and she is relieved of personal liability under it." 'Judgment for plaintiffs against Henry Correy for the amount advanced plus interest at 20% from the date of the advance.']