Garas v Maharaj [2004] NSWSC 1157

Garas v Maharaj [2004] NSWSC 1157

The executed loan agreements dated 15 May 1995, not the unexecuted $23,568.00 document, constituted the agreement between the parties. Although the loan carried 20% interest, Mr and Mrs Maharaj had a real ability to reject the loan and move out, Mr Maharaj did not regard the rate as excessive, and the circumstances did not show sufficient inequality of bargaining power or vulnerability to justify relief under the Contracts Review Act 1980, s 7(1) or on unconscionability grounds.

Jurisdiction
Australia
Judgment Date
06 December 2004
Procedural Posture
Contract Loan Enforcement With Cross Claim Under the Contracts Review Act 1980 and Unconscionability / Judgment After Hearing
Outcome
Judgment to be entered for Mr Garas; cross claim dismissed; costs reserved for further hearing.
Legal Topics
['vendor Finance' 'loan Agreement' 'harsh and Unconscionable Contracts' 'contracts Review Act 1980, S 7(1)' 'unconscionability']
['contracts' 'equity'] ['vendor Finance' 'loan Agreement' 'harsh and Unconscionable Contracts' 'contracts Review Act 1980, S 7(1)' 'unconscionability']

Case Brief

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Procedural Posture

Contract Loan Enforcement With Cross Claim Under the Contracts Review Act 1980 and Unconscionability / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the unexecuted document for $23,568.00 or the executed loan agreements dated 15 May 1995 constituted the loan agreement between the parties.' 'Whether the interest rate of 20% was an unjust provision under the Contracts Review Act 1980, s 7(1).' 'Whether enforcement of the loan agreement was unconscionable.']

Ratio Decidendi

The executed loan agreements dated 15 May 1995, not the unexecuted $23,568.00 document, constituted the agreement between the parties. Although the loan carried 20% interest, Mr and Mrs Maharaj had a real ability to reject the loan and move out, Mr Maharaj did not regard the rate as excessive, and the circumstances did not show sufficient inequality of bargaining power or vulnerability to justify relief under the Contracts Review Act 1980, s 7(1) or on unconscionability grounds.

Court Disposition

Judgment to be entered for Mr Garas; cross claim dismissed; costs reserved for further hearing.

Orders

  • ['Judgment for Mr Garas in the amount to be calculated by the parties using a starting principal of $31,941.61, agreed repayments and interest to the date of judgment.' 'The cross claim is dismissed.' 'The parties are to be heard on costs.' 'The parties are directed to bring in short minutes of orders reflecting the...