Bendigo & Adelaide Bank Ltd v Carnemolla [2011] NSWSC 1202

Bendigo & Adelaide Bank Ltd v Carnemolla [2011] NSWSC 1202

The defendants admitted signing the loan application, loan agreement and mortgage and accepted default. They failed to prove that they were relevantly disadvantaged, that any psychiatric condition affected the transaction, that they were denied meaningful legal advice, or that Mr Angelopoulos procured the loan by false statements, false taxation returns, undue influence, misleading or deceptive conduct, or unconscionable conduct. The Court found the loan and mortgage were on reasonable terms and were not unjust, and that the plaintiff was entitled to rely on the information supplied through Premier and Romavale. Accordingly, the plaintiff was entitled to possession of Lot 1, and the...

Jurisdiction
Australia
Judgment Date
14 October 2011
Procedural Posture
Common Law Mortgage Possession Proceedings With Cross Claims / Principal Judgment After Hearing
Outcome
Plaintiff granted possession of Lot 1 and leave to issue a writ of possession, with execution stayed until 30 January 2012; verdict and judgment entered for the cross-defendants on all cross-claims; costs reserved.
Legal Topics
['possession Under Mortgage' 'contracts Review Act Challenge to Mortgage' 'unjust Transaction' 'misleading or Deceptive Conduct' 'unconscionable Conduct' 'cross Claims for Indemnity and Apportionment' 'writ of Possession']
['common Law' 'mortgage Law' 'contract Law' 'consumer Credit' 'civil Liability'] ['possession Under Mortgage' 'contracts Review Act Challenge to Mortgage' 'unjust Transaction' 'misleading or Deceptive Conduct' 'unconscionable Conduct' 'cross Claims for Indemnity and Apportionment' 'writ of Possession']

Case Brief

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Procedural Posture

Common Law Mortgage Possession Proceedings With Cross Claims / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the plaintiff was entitled to possession of Lot 1 under the mortgage after default by the defendants.' 'Whether the loan and mortgage should be set aside or varied because the defendants were disadvantaged or because the transaction was unjust.' 'Whether Mr Angelopoulos or other cross-defendants procured the loan by false information, false taxation returns, undue influence, misleading or deceptive conduct, or unconscionable conduct.' 'Whether the plaintiff was entitled to rely on information obtained through Premier and Romavale without direct contact with the defendants.' 'Whether the cross-defendants on the first, second and third cross-claims were entitled to verdict and judgment.']

Ratio Decidendi

The defendants admitted signing the loan application, loan agreement and mortgage and accepted default. They failed to prove that they were relevantly disadvantaged, that any psychiatric condition affected the transaction, that they were denied meaningful legal advice, or that Mr Angelopoulos procured the loan by false statements, false taxation returns, undue influence, misleading or deceptive conduct, or unconscionable conduct. The Court found the loan and mortgage were on reasonable terms and were not unjust, and that the plaintiff was entitled to rely on the information supplied through Premier and Romavale. Accordingly, the plaintiff was entitled to possession of Lot 1, and the...

Court Disposition

Plaintiff granted possession of Lot 1 and leave to issue a writ of possession, with execution stayed until 30 January 2012; verdict and judgment entered for the cross-defendants on all cross-claims; costs reserved.

Orders

  • ['The plaintiff have possession of the whole of the land contained in Certificate of Title Folio Identifier 1/SP63720 being Lot 1 in Strata Plan 63720 known as 1/120 Oxford Street, Smithfield, New South Wales.' 'Grant leave to the plaintiff to issue a Writ of Possession in respect of Lot 1 in Strata Plan 63720.'...