Fast Fix Loans Pty Limited v Mladenko Samardzic and Anor [2011] NSWSC 19

Fast Fix Loans Pty Limited v Mladenko Samardzic and Anor [2011] NSWSC 19

The deed of loan and deed of variation of loan were unjust within the meaning of section 4 of the Contracts Review Act 1980 insofar as they related to Mladenko and Dragica Samardzic. The contracts imposed obligations on them in circumstances of significant inequality of bargaining power, they did not fully understand the effect of the documents, they were under pressure to sign them urgently to assist their son, and the lender made no inquiry as to their financial circumstances or ability to meet the obligations. The contracts conferred no benefit and placed their only asset at risk, rendering them unjust. Consequently, it is appropriate to remove them as parties to the deeds and to...

Jurisdiction
Australia
Judgment Date
04 February 2011
Procedural Posture
Principal Judgment / Final Judgment
Outcome
Judgment for defendants (relief granted under the Contracts Review Act 1980; mortgage to be discharged; costs to defendants).
Legal Topics
['contracts Review Act 1980 Application' 'unjust Contracts' 'mortgages' 'asset Lending' 'undue Influence']
['contract Law' 'equity' 'banking and Finance Law'] ['contracts Review Act 1980 Application' 'unjust Contracts' 'mortgages' 'asset Lending' 'undue Influence']

Case Brief

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Procedural Posture

Principal Judgment / Final Judgment

Legal Issues

  1. 1 ['Whether the deed of loan and deed of variation of loan were unjust within the meaning of s4 of the Contracts Review Act 1980 as they related to Mladenko Samardzic and Dragica Samardzic' 'Whether Fast Fix Loans Pty Limited should be required to discharge the registered mortgage over the Bowral property' 'Whether the defendants were subject to undue influence']

Ratio Decidendi

The deed of loan and deed of variation of loan were unjust within the meaning of section 4 of the Contracts Review Act 1980 insofar as they related to Mladenko and Dragica Samardzic. The contracts imposed obligations on them in circumstances of significant inequality of bargaining power, they did not fully understand the effect of the documents, they were under pressure to sign them urgently to assist their son, and the lender made no inquiry as to their financial circumstances or ability to meet the obligations. The contracts conferred no benefit and placed their only asset at risk, rendering them unjust. Consequently, it is appropriate to remove them as parties to the deeds and to...

Court Disposition

Judgment for defendants (relief granted under the Contracts Review Act 1980; mortgage to be discharged; costs to defendants).

Orders

  • ['Declaration that the deed of loan dated 22 February 2008 is unjust within the meaning of s4 of the Contracts Review Act 1980 insofar as it relates to Mladenko Samardzic and Dragica Samardzic.' 'The deed of loan is varied to remove Mladenko Samardzic and Dragica Samardzic as parties.' 'Declaration that the deed of...