Perpetual Trustee Company Limited v Bowie [2015] NSWSC 328

Perpetual Trustee Company Limited v Bowie [2015] NSWSC 328

The Loan Agreement and Mortgage were not unjust because Ms Bowie was capable of protecting her interests, understood the no-doc nature of the loan and that Perpetual and Collins Securities would not assess her capacity to repay, was not deprived of an informed choice, and Perpetual neither knew nor was fixed with the mortgage broker's knowledge of circumstances affecting her capacity. Perpetual was not required to investigate her financial position for a no-doc loan and owed no duty of care to prudently assess whether to grant the loan. The cross-claim therefore failed and Perpetual was entitled to possession, judgment for the debt, and costs.

Jurisdiction
Australia
Judgment Date
31 March 2015
Procedural Posture
Mortgagee Possession and Debt Recovery Proceedings With Cross Claim Under the Contracts Review Act 1980 (nsw) and in Negligence / Final Hearing; Principal Judgment
Outcome
Judgment for the plaintiff; cross-claim dismissed.
Legal Topics
['torrens Title' 'possession of Land Pursuant to Registered Mortgage' 'contracts Review Act 1980 (nsw)' 'low Doc and No Doc Loans' 'unjust Contracts' 'constructive Knowledge Through Mortgage Broker' 'negligence' 'lender Duty of Care']
['real Property' 'contracts' 'torts'] ['torrens Title' 'possession of Land Pursuant to Registered Mortgage' 'contracts Review Act 1980 (nsw)' 'low Doc and No Doc Loans' 'unjust Contracts' 'constructive Knowledge Through Mortgage Broker' 'negligence' 'lender Duty of Care']

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Procedural Posture

Mortgagee Possession and Debt Recovery Proceedings With Cross Claim Under the Contracts Review Act 1980 (nsw) and in Negligence / Final Hearing; Principal Judgment

Legal Issues

  1. 1 ['Whether the Loan Agreement or Mortgage was unjust in the circumstances relating to the contract at the time it was made under the Contracts Review Act 1980 (NSW).' "Whether Perpetual was required to ascertain Ms Bowie's income, assets and liabilities or suitability for the no-doc loan." "Whether Perpetual knew or had constructive knowledge through the mortgage broker of Ms Bowie's obsessive compulsive disorder, depression or receipt of a disability pension." 'Whether Perpetual owed Ms Bowie a common law duty of care to prudently assess whether to grant the loan and enter into the mortgage.' 'Whether Perpetual was entitled to possession of the Terrigal Property and judgment for the debt owing.']

Ratio Decidendi

The Loan Agreement and Mortgage were not unjust because Ms Bowie was capable of protecting her interests, understood the no-doc nature of the loan and that Perpetual and Collins Securities would not assess her capacity to repay, was not deprived of an informed choice, and Perpetual neither knew nor was fixed with the mortgage broker's knowledge of circumstances affecting her capacity. Perpetual was not required to investigate her financial position for a no-doc loan and owed no duty of care to prudently assess whether to grant the loan. The cross-claim therefore failed and Perpetual was entitled to possession, judgment for the debt, and costs.

Court Disposition

Judgment for the plaintiff; cross-claim dismissed.

Orders

  • ['The defendant give the plaintiff possession of all the land comprised in certificate of title folio identifier 123/200508 being the land situated at and known as xxxx, Terrigal in the State of New South Wales (the Terrigal Property).' 'The plaintiff has leave to issue a writ of possession in respect of the...