Tobaji and Anor v National Australia Bank Limited [2009] NSWSC 41

Tobaji and Anor v National Australia Bank Limited [2009] NSWSC 41

The Plaintiffs failed to establish unjustness or unconscionability because the Court found that, by early June 2004, both Plaintiffs understood that loans exceeding $400,000.00 were being obtained using the Punchbowl property as security, and that $300,000.00 was to be lent to Gilzan for investment purposes. The contemporaneous documents, the Riverwood branch transactions, the Gilzan loan agreement and caveat, and the Plaintiffs' subsequent conduct were inconsistent with their claimed belief that only $12,000.00 was being borrowed. The Defendant's failure to detect false employment material or follow up a possible inconsistency in internal records did not make the loans unjust, and any...

Jurisdiction
Australia
Judgment Date
12 February 2009
Procedural Posture
Supreme Court of New South Wales Common Law Division Possession List Proceedings Concerning Loan Agreements, Mortgage, Unjust Contract Relief and a Cross Claim for Possession / Principal Judgment After Hearing
Outcome
Judgment for the Defendant on the Statement of Claim. Judgment for the Defendant/Cross-Claimant on the Cross Claim.
Legal Topics
['unjust Contracts' 'mortgage and Loan Contract' 'contracts Review Act 1980' 'consumer Credit (new South Wales) Code 1995' 'unconscionability' 'possession of Mortgaged Property' 'mortgage Broker Supplied Information' 'business or Investment Purposes Declaration']
['contracts' 'consumer Credit' 'banking and Finance' 'equity' 'real Property'] ['unjust Contracts' 'mortgage and Loan Contract' 'contracts Review Act 1980' 'consumer Credit (new South Wales) Code 1995' 'unconscionability' 'possession of Mortgaged Property' 'mortgage Broker Supplied Information' 'business or Investment Purposes Declaration']

Case Brief

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Procedural Posture

Supreme Court of New South Wales Common Law Division Possession List Proceedings Concerning Loan Agreements, Mortgage, Unjust Contract Relief and a Cross Claim for Possession / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the Plaintiffs believed the June 2004 agreements and mortgage secured only a $12,000.00 loan for concreting work at the Punchbowl property.' 'Whether the Plaintiffs were deceived by mortgage broker Wally Estephan into believing the agreements and mortgage were for $12,000.00 only.' 'Whether the Plaintiffs understood that advances exceeding $400,000.00 were being obtained and that $300,000.00 was to be lent to Gilzan Pty Limited for investment purposes.' 'Whether acts or omissions of officers of the Defendant in assessing the loan application, including failure to follow up inconsistent employment information, contributed to unjustness.' 'Whether the Plaintiffs were entitled to relief under the Contracts Review Act 1980, s.70 of the Consumer Credit (New South Wales) Code 1995 or the general law.' 'Whether the Defendant was entitled to possession of the Punchbowl property and judgment on its cross-claim.']

Ratio Decidendi

The Plaintiffs failed to establish unjustness or unconscionability because the Court found that, by early June 2004, both Plaintiffs understood that loans exceeding $400,000.00 were being obtained using the Punchbowl property as security, and that $300,000.00 was to be lent to Gilzan for investment purposes. The contemporaneous documents, the Riverwood branch transactions, the Gilzan loan agreement and caveat, and the Plaintiffs' subsequent conduct were inconsistent with their claimed belief that only $12,000.00 was being borrowed. The Defendant's failure to detect false employment material or follow up a possible inconsistency in internal records did not make the loans unjust, and any...

Court Disposition

Judgment for the Defendant on the Statement of Claim. Judgment for the Defendant/Cross-Claimant on the Cross Claim.

Orders

  • ['The Defendant is to bring in Short Minutes of Order giving effect to the reasons for judgment, accompanied by a final affidavit of debt.' 'A copy of the judgment is to be furnished to the Chief Executive Officer of the Law Society of New South Wales for the purpose of investigation of the conduct of James Joseph...