Australian Securities Ltd v Borina Pty Ltd [2017] NSWSC 1073

Australian Securities Ltd v Borina Pty Ltd [2017] NSWSC 1073

Leave granted to file a cross-claim for account taking, money had and received and ACL s 21 unconscionability, as these causes of action are not futile; breach of contract and damages claims cannot proceed. The Defendant may pursue additional head of damage contingent on providing $10,000 extra security. Defendant to pay 50% of Plaintiff's costs of the motion.

Jurisdiction
Australia
Judgment Date
17 August 2017
Procedural Posture
Notice of Motion (cross Claim in Discontinued Proceedings) / Interlocutory Application for Leave to File Cross Claim
Outcome
Leave granted in part; orders made as specified.
Legal Topics
['mortgages' 'redemption of Mortgage' 'account Taking' 'money Had and Received' 'unconscionable Conduct' 'breach of Contract' 'claim for Damages' 'security for Costs']
['real Property' 'contract' 'consumer Law'] ['mortgages' 'redemption of Mortgage' 'account Taking' 'money Had and Received' 'unconscionable Conduct' 'breach of Contract' 'claim for Damages' 'security for Costs']

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 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Notice of Motion (cross Claim in Discontinued Proceedings) / Interlocutory Application for Leave to File Cross Claim

Legal Issues

  1. 1 ['Whether leave should be granted to file a cross-claim seeking account, money had and received, relief for breaches of s 21 of the ACL' "Whether mortgagor's causes of action for breach of contract and damages are futile" 'Whether claim for unconscionable conduct under s 21 ACL is available' 'Whether additional security for further head of damage can be ordered']

Ratio Decidendi

Leave granted to file a cross-claim for account taking, money had and received and ACL s 21 unconscionability, as these causes of action are not futile; breach of contract and damages claims cannot proceed. The Defendant may pursue additional head of damage contingent on providing $10,000 extra security. Defendant to pay 50% of Plaintiff's costs of the motion.

Court Disposition

Leave granted in part; orders made as specified.

Orders

  • ['Leave to Defendant to file cross-claim seeking account, claim for money had and received, and relief for breaches of s 21 ACL.' 'On payment to Plaintiff of $10,000, leave to Defendant to claim additional head of damage specified in second proposed cross-claim.' "Defendant to pay 50% of Plaintiff's costs of Notice...