Ling v Pan Pac Investment Pty Limited; Ling v Wu [2015] NSWSC 850

Ling v Pan Pac Investment Pty Limited; Ling v Wu [2015] NSWSC 850

Mr Ling did not act unconscionably in relation to the first loan because he did not then know of, believe in, or wilfully ignore a special disadvantage, and the 9% standard rate and 11% default rate were reasonable and not penalties. By the second loan and thereafter, Ms Wu was under a special disadvantage because she was unable to see that she was being defrauded, while Mr Ling believed or wilfully ignored that fact and charged very high rates. Enforcement of the contractual rates on the second to fifth loans would therefore be unconscionable, but Mr Ling was entitled to interest at 20% per annum on those loans because the loans were short-term and informal and he was entitled to some...

Jurisdiction
Australia
Judgment Date
30 June 2015
Procedural Posture
Claim for Possession of Land Founded on a Mortgage Securing a Debt and for Monetary Judgment, With Defences and Cross Claims Concerning Unconscionability, the Contracts Review Act 1980 (nsw) and Penalties / Principal Judgment After Hearing
Outcome
Judgment for the plaintiff against the second defendant in a sum to be determined. The first loan was not varied and the 11% per annum default interest rate was allowed. Interest on the second, third, fourth and fifth loans was reduced to 20% per annum from the date of default of each loan. Costs were reserved until...
Legal Topics
['mortgage Default' 'possession of Land' 'loan Agreements' 'interest on Loans' 'unconscionable Conduct' 'special Disadvantage' 'contracts Review Act 1980 (nsw)' 'penalty Clauses']
['contract Law' 'equity' 'real Property' 'civil Procedure'] ['mortgage Default' 'possession of Land' 'loan Agreements' 'interest on Loans' 'unconscionable Conduct' 'special Disadvantage' 'contracts Review Act 1980 (nsw)' 'penalty Clauses']

Case Brief

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Procedural Posture

Claim for Possession of Land Founded on a Mortgage Securing a Debt and for Monetary Judgment, With Defences and Cross Claims Concerning Unconscionability, the Contracts Review Act 1980 (nsw) and Penalties / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether Ms Wu should pay any interest on the five loans advanced by Mr Ling and, if so, at what rate.' 'Whether enforcement of the contractual interest rates would be unconscionable.' 'Whether relief under s 7 of the Contracts Review Act 1980 (NSW) was available or barred by s 6.' 'Whether any interest should be disallowed as an unlawful penalty.' 'Whether the mortgage over the Mortdale property could be enforced if the judgment debt was not paid.']

Ratio Decidendi

Mr Ling did not act unconscionably in relation to the first loan because he did not then know of, believe in, or wilfully ignore a special disadvantage, and the 9% standard rate and 11% default rate were reasonable and not penalties. By the second loan and thereafter, Ms Wu was under a special disadvantage because she was unable to see that she was being defrauded, while Mr Ling believed or wilfully ignored that fact and charged very high rates. Enforcement of the contractual rates on the second to fifth loans would therefore be unconscionable, but Mr Ling was entitled to interest at 20% per annum on those loans because the loans were short-term and informal and he was entitled to some...

Court Disposition

Judgment for the plaintiff against the second defendant in a sum to be determined. The first loan was not varied and the 11% per annum default interest rate was allowed. Interest on the second, third, fourth and fifth loans was reduced to 20% per annum from the date of default of each loan. Costs were reserved until...

Orders

  • ['Judgment for the plaintiff against the second defendant in a sum to be determined.' 'The parties have liberty to approach my Associate within two weeks of today for the making of formal orders.' 'Senior counsel for the defendants is to bring in draft orders to give precise effect to the findings contained in this...