Sayer v Turk & Anor [2001] NSWSC 750

Sayer v Turk & Anor [2001] NSWSC 750

The second defendant failed to discharge the onus of establishing unconscionable conduct, imputed knowledge or non est factum. The mortgage was executed as part of a commercial project for joint benefit, with adequate understanding by the defendant, and without evidence of statutory or equitable unconscionability. Judgment was therefore entered for possession in favour of the plaintiff.

Jurisdiction
Australia
Judgment Date
31 August 2001
Procedural Posture
Claim for Possession by Receiver of Solicitor's Practice / Judgment After Defended Hearing
Outcome
Judgment for the plaintiff; possession granted
Legal Topics
['possession of Land' "receivership of Solicitor's Practice" 'unconscionable Conduct' 'non Est Factum' 'imputed Knowledge of Solicitor' 'mortgage Enforcement']
['property Law' 'contract Law' 'equity'] ['possession of Land' "receivership of Solicitor's Practice" 'unconscionable Conduct' 'non Est Factum' 'imputed Knowledge of Solicitor' 'mortgage Enforcement']

Case Brief

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Procedural Posture

Claim for Possession by Receiver of Solicitor's Practice / Judgment After Defended Hearing

Legal Issues

  1. 1 ['Whether the conduct of the mortgagees or their solicitor was unconscionable so as to grant relief to the second defendant' 'Whether knowledge of solicitor (MacDonald) could be imputed to the mortgagees (Impeys)' 'Whether the second defendant could rely on non est factum as a defence' 'Whether the mortgage was entered into in circumstances justifying relief under Fair Trading Act 1987 (NSW) s 43']

Ratio Decidendi

The second defendant failed to discharge the onus of establishing unconscionable conduct, imputed knowledge or non est factum. The mortgage was executed as part of a commercial project for joint benefit, with adequate understanding by the defendant, and without evidence of statutory or equitable unconscionability. Judgment was therefore entered for possession in favour of the plaintiff.

Court Disposition

Judgment for the plaintiff; possession granted

Orders

  • ['Judgment against both defendants for possession of the land described in paragraph 10 of the Statement of Claim for Possession' 'Question of leave to issue Writ of Possession referred to a Registrar' "Defendants to pay plaintiff's costs to date" 'Exhibits may be returned']