LANDER v TRIGGER [1999] NSWSC 1253

LANDER v TRIGGER [1999] NSWSC 1253

The defendant failed to establish unconscionability because the Court accepted Mrs Karageorge's evidence that she thoroughly advised him about the mortgage and found that his later conduct showed he understood his liabilities. Relief under the Contracts Review Act was unavailable because the loan was obtained for the purpose of a proposed bush rock partnership business and s 6(2) applied. The professional negligence cross-claim therefore failed. In any event, the plaintiff's registered interest was protected by s 42 of the Real Property Act, so the defence to her possession claim could not succeed.

Jurisdiction
Australia
Judgment Date
17 December 1999
Procedural Posture
Claim for Possession of Land Following Mortgage Default, With Cross Claims Concerning the Original Mortgage and Professional Negligence / Judgment After Hearing
Outcome
Judgment for possession for the plaintiff and judgment for the cross-defendants on the cross-claims; entry of judgment, calculation of debt and costs orders deferred.
Legal Topics
['possession of Land' 'mortgage Default' 'contracts Review Act Relief' 'unconscionability' 'business Purpose Exclusion' 'indefeasibility of Registered Interests' "solicitor's Advice on Mortgage Documents"]
['real Property' 'mortgage Law' 'contract Law' 'equity' 'professional Negligence'] ['possession of Land' 'mortgage Default' 'contracts Review Act Relief' 'unconscionability' 'business Purpose Exclusion' 'indefeasibility of Registered Interests' "solicitor's Advice on Mortgage Documents"]

Case Brief

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Procedural Posture

Claim for Possession of Land Following Mortgage Default, With Cross Claims Concerning the Original Mortgage and Professional Negligence / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the defendant established unconscionability in relation to the original mortgage.' 'Whether the defendant was precluded by s 6(2) of the Contracts Review Act 1980 from obtaining relief under s 7 because the loan was for the purpose of a proposed business.' "Whether the defendant's cross-claim against Mr and Mrs Ralphs should succeed." 'Whether Mrs Karageorge was professionally negligent in advising the defendant about the original mortgage.' "Whether s 42 of the Real Property Act prevented the defendant from resisting the plaintiff's claim for possession."]

Ratio Decidendi

The defendant failed to establish unconscionability because the Court accepted Mrs Karageorge's evidence that she thoroughly advised him about the mortgage and found that his later conduct showed he understood his liabilities. Relief under the Contracts Review Act was unavailable because the loan was obtained for the purpose of a proposed bush rock partnership business and s 6(2) applied. The professional negligence cross-claim therefore failed. In any event, the plaintiff's registered interest was protected by s 42 of the Real Property Act, so the defence to her possession claim could not succeed.

Court Disposition

Judgment for possession for the plaintiff and judgment for the cross-defendants on the cross-claims; entry of judgment, calculation of debt and costs orders deferred.

Orders

  • ['Judgment for possession for the plaintiff.' 'Judgment for the cross-defendants on the cross-claims.' 'Entering of judgment deferred until delivery of the reasons so that the amounts of debt owed by the defendant to the plaintiff may be calculated.' 'Costs orders deferred until delivery of the reasons.']