Kenneth Charles Ward v Brian Charles Ward & Anor [2011] NSWSC 107

Kenneth Charles Ward v Brian Charles Ward & Anor [2011] NSWSC 107

Because the Defendants failed to appear and plead, the pleaded allegations were deemed admitted. Those admissions established that the $140,000 advance had become repayable by 6 September 2009 with interest at 15 percent per annum, entitling the Plaintiff to judgment against the Second Defendant. The admissions also established that, at the time the First Defendant received a one-third interest in the Kings Park property, the Plaintiff was under a special disability or disadvantage known to the First Defendant and that the First Defendant unconscionably took advantage of it, entitling the Plaintiff to a declaration that the First Defendant holds that interest on trust for him.

Jurisdiction
Australia
Judgment Date
04 February 2011
Procedural Posture
Equity Division Proceeding for Unconscionable Dealing Relief and Recovery Under a Loan Agreement / Undefended Hearing; Ex Tempore Principal Judgment
Outcome
Plaintiff succeeded against the Second Defendant on the loan agreement and obtained declaratory relief against the First Defendant in respect of the Kings Park property; further consideration of remaining claims against the First Defendant was reserved.
Legal Topics
['unconscionable Dealings' 'special Disadvantage' 'deemed Admissions From Failure to Plead' 'declaratory Relief' 'loan Agreement Repayment' 'power of Attorney' 'trust Over Real Property']
['equity' 'contract Law' 'property Law'] ['unconscionable Dealings' 'special Disadvantage' 'deemed Admissions From Failure to Plead' 'declaratory Relief' 'loan Agreement Repayment' 'power of Attorney' 'trust Over Real Property']

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Procedural Posture

Equity Division Proceeding for Unconscionable Dealing Relief and Recovery Under a Loan Agreement / Undefended Hearing; Ex Tempore Principal Judgment

Legal Issues

  1. 1 ['Whether the Second Defendant was liable to repay the $140,000 loan advance and interest under the loan agreement.' "Whether the First Defendant unconscionably took advantage of the Plaintiff's special disadvantage in obtaining a one-third interest in the Kings Park property." 'Whether the First Defendant held his interest in the Kings Park property on trust for the Plaintiff.' "What effect the Defendants' failure to appear and plead had on the allegations in the Statement of Claim."]

Ratio Decidendi

Because the Defendants failed to appear and plead, the pleaded allegations were deemed admitted. Those admissions established that the $140,000 advance had become repayable by 6 September 2009 with interest at 15 percent per annum, entitling the Plaintiff to judgment against the Second Defendant. The admissions also established that, at the time the First Defendant received a one-third interest in the Kings Park property, the Plaintiff was under a special disability or disadvantage known to the First Defendant and that the First Defendant unconscionably took advantage of it, entitling the Plaintiff to a declaration that the First Defendant holds that interest on trust for him.

Court Disposition

Plaintiff succeeded against the Second Defendant on the loan agreement and obtained declaratory relief against the First Defendant in respect of the Kings Park property; further consideration of remaining claims against the First Defendant was reserved.

Orders

  • ['Judgment for the Plaintiff against the Second Defendant for the amount of the advance and interest in accordance with the terms of the loan agreement.' 'Interest under the loan agreement is to be calculated on an annually compounding basis.' 'Declaration that the First Defendant holds his interest in the Kings...