Citigroup v Azar [2011] NSWSC 95

Citigroup v Azar [2011] NSWSC 95

The Court found that the defendants knew they were entering into the loan and mortgage proceedings, were not subject to impaired will, and knowingly received the benefit of the loan. There was no injustice or unconscionability in the contract and the defence of non est factum was not made out. The Consumer Credit Code did not apply because the credit was not provided for personal or household purposes. The plaintiff was entitled to possession, judgment for the debt, and costs.

Jurisdiction
Australia
Judgment Date
02 March 2011
Procedural Posture
Possession of Land Mortgage Enforcement and Cross Claim for Relief / Final Judgment After Hearing
Outcome
Judgment for the plaintiff; all defences and cross-claims dismissed.
Legal Topics
['possession of Land' 'mortgages' 'unjust Contracts' 'unconscionable Conduct' 'non Est Factum' 'relief Under Contracts Review Act 1980' 'consumer Credit Code Applicability']
['property Law' 'credit and Consumer Law' 'equity' 'contract Law'] ['possession of Land' 'mortgages' 'unjust Contracts' 'unconscionable Conduct' 'non Est Factum' 'relief Under Contracts Review Act 1980' 'consumer Credit Code Applicability']

Case Brief

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Procedural Posture

Possession of Land Mortgage Enforcement and Cross Claim for Relief / Final Judgment After Hearing

Legal Issues

  1. 1 ['Whether the mortgage and loan agreement signed by the defendants with Citigroup Pty Ltd are unjust or unconscionable under the Contracts Review Act 1980 or other statutes.' 'Whether the defence of non est factum is available to the defendants.' 'Whether the Consumer Credit Code applies.']

Ratio Decidendi

The Court found that the defendants knew they were entering into the loan and mortgage proceedings, were not subject to impaired will, and knowingly received the benefit of the loan. There was no injustice or unconscionability in the contract and the defence of non est factum was not made out. The Consumer Credit Code did not apply because the credit was not provided for personal or household purposes. The plaintiff was entitled to possession, judgment for the debt, and costs.

Court Disposition

Judgment for the plaintiff; all defences and cross-claims dismissed.

Orders

  • ['Order that the plaintiff have possession of the whole of the land at 167 Blaxcell Street, Granville, NSW.' 'Leave to the plaintiff to issue a writ of possession forthwith.' 'Verdict and judgment for the plaintiff in the sum of $329,729.83.' 'Verdict and judgment for the plaintiff/first cross-defendant against the...