Ellis v Newton [2011] NSWSC 117

Ellis v Newton [2011] NSWSC 117

The Court accepted Mr Ellis' evidence and rejected the defendants' evidence that the Mortgage and caveat were said to be non-binding or would never be relied upon. Mr Newton's claim under the Contracts Review Act 1980 (NSW) depended on that rejected conversation and therefore failed. Mrs Newton was not entitled to relief because the taking of the Mortgage and Consent was not unjust: the documents were short and simple, she understood mortgages and caveats, no unfair pressure or tactics by Mr Ellis were established, she was educated and of independent means, and later conduct acknowledged the Mortgage and consented to a further caveat. The declaration had utility because it would assist Mr...

Jurisdiction
Australia
Judgment Date
25 February 2011
Procedural Posture
Civil Proceedings Concerning Enforcement of a Lease Guarantee, Unregistered Mortgage and Caveat, and Claims for Relief Under the Contracts Review Act 1980 (nsw) / Principal Judgment After Hearing
Outcome
Judgment for the plaintiff against the first defendant in the amount of $189,224.37, with an adjustment from 7 February 2011 to the date of judgment, and declaration granted.
Legal Topics
['unregistered Mortgage' 'caveat' 'equitable Interest as Mortgagee' 'contracts Review Act Relief' 'declaration' 'lease Arrears' 'guarantor Liability']
['contracts' 'equity' 'real Property' 'guarantees' 'leases' 'remedies'] ['unregistered Mortgage' 'caveat' 'equitable Interest as Mortgagee' 'contracts Review Act Relief' 'declaration' 'lease Arrears' 'guarantor Liability']

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Procedural Posture

Civil Proceedings Concerning Enforcement of a Lease Guarantee, Unregistered Mortgage and Caveat, and Claims for Relief Under the Contracts Review Act 1980 (nsw) / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether Mr and Mrs Newton were entitled to relief under s 9 of the Contracts Review Act 1980 (NSW) in respect of the Mortgage and caveat.' 'Whether Mr Ellis told Mr Newton that the Mortgage and caveat were not intended to be legally binding and would never be relied upon.' 'Whether Mr Newton told Mrs Newton that Mr Ellis had assured him that the Mortgage was not intended to be legally binding and would never be relied upon.' 'Whether, if relief were granted to Mrs Newton but not Mr Newton, Mr Ellis retained rights against Mr Newton in respect of the Mortgage.' 'Whether there was utility in granting a declaration that Mr Ellis had an equitable interest as mortgagee in the Gladesville Property despite the Mortgage being unregistered and a prior registered mortgage existing.']

Ratio Decidendi

The Court accepted Mr Ellis' evidence and rejected the defendants' evidence that the Mortgage and caveat were said to be non-binding or would never be relied upon. Mr Newton's claim under the Contracts Review Act 1980 (NSW) depended on that rejected conversation and therefore failed. Mrs Newton was not entitled to relief because the taking of the Mortgage and Consent was not unjust: the documents were short and simple, she understood mortgages and caveats, no unfair pressure or tactics by Mr Ellis were established, she was educated and of independent means, and later conduct acknowledged the Mortgage and consented to a further caveat. The declaration had utility because it would assist Mr...

Court Disposition

Judgment for the plaintiff against the first defendant in the amount of $189,224.37, with an adjustment from 7 February 2011 to the date of judgment, and declaration granted.

Orders

  • ['Judgment for Mr Ellis against Mr Newton in the amount of $189,224.37, with an adjustment from 7 February 2011 to date.' 'Declaration that Mr Ellis has an equitable interest as mortgagee in the Gladesville Property in the terms sought in paragraph 1 of the summons.']