Perpetual Trustee v McAndrew [2007] NSWSC 1452

Perpetual Trustee v McAndrew [2007] NSWSC 1452

The plaintiffs did not establish that the Contracts Review Act 1980 was inapplicable by reason of s 6(2). Whether Mr McAndrew understood the mortgage documents, had capacity to understand them, and what was known about his capacity were factual matters for trial, and he had an arguable case. A defendant seeking to set aside mortgage documents on the basis of lack of mental capacity should not be required to pay the amount owing under the mortgage into court before taking that action, particularly where the cross-claim sought to set aside the whole mortgage and loan and he said he did not receive the proceeds.

Jurisdiction
Australia
Judgment Date
14 December 2007
Procedural Posture
Mortgage Possession Proceedings; Plaintiffs' Notice of Motion for Summary Judgment, Dismissal of Cross Claim or Alternative Separate Trial and Stay, and Leave to Issue a Writ of Possession / Notice of Motion Filed 11 September 2007
Outcome
Plaintiffs' notice of motion dismissed; plaintiffs ordered to pay the defendant's costs.
Legal Topics
['summary Judgment' 'strike Out' 'mortgage Possession' 'contracts Review Act Relief' 'mental Capacity' 'payment Into Court']
['civil Procedure' 'mortgage Law' 'contracts Review'] ['summary Judgment' 'strike Out' 'mortgage Possession' 'contracts Review Act Relief' 'mental Capacity' 'payment Into Court']

Case Brief

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Procedural Posture

Mortgage Possession Proceedings; Plaintiffs' Notice of Motion for Summary Judgment, Dismissal of Cross Claim or Alternative Separate Trial and Stay, and Leave to Issue a Writ of Possession / Notice of Motion Filed 11 September 2007

Legal Issues

  1. 1 ['Whether the plaintiffs should have summary judgment for possession and on the cross-claim.' "Whether the defendant's reliance on the Contracts Review Act 1980 was excluded by s 6(2) because the contract was entered into in the course of or for the purpose of a trade, business or profession." "Whether issues about the defendant's understanding, mental capacity and the plaintiffs' knowledge of that capacity should be determined at trial." 'Whether the defendant should be required to pay the secured moneys into court before prosecuting his cross-claim to set aside the mortgage and loan.']

Ratio Decidendi

The plaintiffs did not establish that the Contracts Review Act 1980 was inapplicable by reason of s 6(2). Whether Mr McAndrew understood the mortgage documents, had capacity to understand them, and what was known about his capacity were factual matters for trial, and he had an arguable case. A defendant seeking to set aside mortgage documents on the basis of lack of mental capacity should not be required to pay the amount owing under the mortgage into court before taking that action, particularly where the cross-claim sought to set aside the whole mortgage and loan and he said he did not receive the proceeds.

Court Disposition

Plaintiffs' notice of motion dismissed; plaintiffs ordered to pay the defendant's costs.

Orders

  • ["The plaintiffs' notice of motion filed 11 September 2007 is dismissed." "The plaintiffs are to pay the defendant's costs as agreed or assessed."]