Driat Pty Ltd v Thomas [2012] NSWSC 683

Driat Pty Ltd v Thomas [2012] NSWSC 683

The cross claim failed because Thomas understood the nature of the borrowing and mortgages, was not under any special disadvantage, and Driat had no reason to disbelieve the stated commercial purpose of the loans or the documents and advice certificates obtained before settlement. The transactions were not shown to be unjust under the Contracts Review Act 1980 or unconscionable in equity, and were not pure asset lending transactions. Because both mortgages were in default, Driat was entitled to judgment and possession of Wildes Meadow; the Point Piper possession claim was stood over because the ANZ Bank as first mortgagee had obtained an order for possession.

Jurisdiction
Australia
Judgment Date
22 June 2012
Procedural Posture
Mortgage Possession and Debt Proceedings With Cross Claim Under Contracts Review Act 1980 and Unconscionable Conduct / Principal Judgment After Hearing
Outcome
Judgment for the plaintiff against the first defendant; cross claim dismissed; possession ordered for Wildes Meadow; Point Piper possession claim stood over; first defendant ordered to pay costs.
Legal Topics
['mortgagee Possession on Default' 'contracts Review Act 1980 Unjust Contract Claim' 'pure Asset Lending' 'unconscionable Conduct' 'special Disadvantage' 'second Mortgagee Possession Where First Mortgagee Has Obtained Possession Order']
['mortgage Law' 'real Property' 'contract Law' 'equity'] ['mortgagee Possession on Default' 'contracts Review Act 1980 Unjust Contract Claim' 'pure Asset Lending' 'unconscionable Conduct' 'special Disadvantage' 'second Mortgagee Possession Where First Mortgagee Has Obtained Possession Order']

Case Brief

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Procedural Posture

Mortgage Possession and Debt Proceedings With Cross Claim Under Contracts Review Act 1980 and Unconscionable Conduct / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the loan agreements and mortgages were unjust under the Contracts Review Act 1980.' 'Whether Driat engaged in unconscionable conduct by enforcing the agreements against Thomas.' 'Whether the transactions were pure asset lending transactions.' 'Whether Thomas was under a special disadvantage known or that ought to have been known to Driat.' 'Whether a second mortgagee should obtain an order for possession of the Point Piper property where the ANZ Bank as first mortgagee had already obtained an order for possession.']

Ratio Decidendi

The cross claim failed because Thomas understood the nature of the borrowing and mortgages, was not under any special disadvantage, and Driat had no reason to disbelieve the stated commercial purpose of the loans or the documents and advice certificates obtained before settlement. The transactions were not shown to be unjust under the Contracts Review Act 1980 or unconscionable in equity, and were not pure asset lending transactions. Because both mortgages were in default, Driat was entitled to judgment and possession of Wildes Meadow; the Point Piper possession claim was stood over because the ANZ Bank as first mortgagee had obtained an order for possession.

Court Disposition

Judgment for the plaintiff against the first defendant; cross claim dismissed; possession ordered for Wildes Meadow; Point Piper possession claim stood over; first defendant ordered to pay costs.

Orders

  • ['Judgment for the plaintiff against the first defendant for $1,716,024.00.' 'Order that the cross claim be dismissed.' 'Order that the first defendant give possession of property 140 Blencowes Lane, Wildes Meadow being the land in Certificate of Title Folio Identifier 21/622165 to the plaintiff.' "Stand over the...