Lakaev Pty Limited v Grubisic [2010] NSWSC 698

Lakaev Pty Limited v Grubisic [2010] NSWSC 698

The loan from the plaintiff to the defendants was interest free for 14 days and repayable within 14 days. The mortgage document failed to secure the loan but, given the common intention of the parties, should be rectified to secure the loan. Despite no mention of interest in the mortgage, interest is payable from the expiration of the interest-free period according to statutory rates. Costs are awarded on a lump sum basis, discounted by 20%.

Jurisdiction
Australia
Judgment Date
06 July 2010
Procedural Posture
Civil / Judgment at First Instance
Outcome
Judgment for the plaintiff for balance of loan plus interest and fixed sum in lieu of costs. Mortgage rectified. Writ of possession to issue, stayed for 28 days.
Legal Topics
['offer and Acceptance' 'rectification of Instruments' 'mortgages' 'repayment of Loans' 'interest on Loans' 'remedies and Costs']
['contract Law' 'real Property Law' 'civil Procedure'] ['offer and Acceptance' 'rectification of Instruments' 'mortgages' 'repayment of Loans' 'interest on Loans' 'remedies and Costs']

Case Brief

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Procedural Posture

Civil / Judgment at First Instance

Legal Issues

  1. 1 ['Whether the loan from the plaintiff to the defendants was repayable within 14 days or only upon refinance' 'Whether the loan was interest free or subject to an up-front amount as interest' 'Whether the mortgage document should be rectified to secure the loan' 'Whether interest was payable despite no express provision in the mortgage' 'Whether a fixed amount should be paid in lieu of costs']

Ratio Decidendi

The loan from the plaintiff to the defendants was interest free for 14 days and repayable within 14 days. The mortgage document failed to secure the loan but, given the common intention of the parties, should be rectified to secure the loan. Despite no mention of interest in the mortgage, interest is payable from the expiration of the interest-free period according to statutory rates. Costs are awarded on a lump sum basis, discounted by 20%.

Court Disposition

Judgment for the plaintiff for balance of loan plus interest and fixed sum in lieu of costs. Mortgage rectified. Writ of possession to issue, stayed for 28 days.

Orders

  • ['Judgment for plaintiff (Lakaev Pty Limited) against Duro Grubisic and Vesna Grubisic in the amount of $609,763.91.' 'Defendants to pay plaintiff $60,000 in lieu of assessed costs.' 'Mortgage executed 2 September 2008 to stand rectified by addition of securing repayment of $801,059.80 lent by plaintiff, repayable...