Kowalczuk v Accom Finance [2008] NSWCA 343

Kowalczuk v Accom Finance [2008] NSWCA 343

Default interest and compounding provisions in the mortgage contracts were unjust under the Contracts Review Act and unconscionable within the meaning of the Fair Trading Act. Compensation was ordered for amounts paid under these provisions. Accom's claim to enforce sale of the Berowra property was not justified. Claims against Dalla for inadequate advice failed as causation was not established and no breach under s42 Fair Trading Act (no intentional misleading conduct).

Jurisdiction
Australia
Judgment Date
10 December 2008
Procedural Posture
Appeal / Judgment
Outcome
Appeal partially allowed; cross-claims against solicitor dismissed; compensation orders made.
Legal Topics
['unconscionable Contracts' 'statutory Remedies' 'duty of Care' 'default Interest' 'penalty Clauses' 'contracts Review Act' 'fair Trading Act' 'trade Practices Act' 'misleading or Deceptive Conduct' 'compounding Interest']
['contracts' 'trade and Commerce' 'legal Practitioners'] ['unconscionable Contracts' 'statutory Remedies' 'duty of Care' 'default Interest' 'penalty Clauses' 'contracts Review Act' 'fair Trading Act' 'trade Practices Act' 'misleading or Deceptive Conduct' 'compounding Interest']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 ['Whether loan contracts and guarantees were unjust or unconscionable under Contracts Review Act and general law' 'Whether default interest and compounding provisions are unjust, unconscionable, or void' "Whether loans were supplied 'for the purpose of trade or commerce' under Trade Practices Act" 'Whether solicitor breached duty of care or contractual obligations' 'Whether claims against solicitor fall under section 42 Fair Trading Act']

Ratio Decidendi

Default interest and compounding provisions in the mortgage contracts were unjust under the Contracts Review Act and unconscionable within the meaning of the Fair Trading Act. Compensation was ordered for amounts paid under these provisions. Accom's claim to enforce sale of the Berowra property was not justified. Claims against Dalla for inadequate advice failed as causation was not established and no breach under s42 Fair Trading Act (no intentional misleading conduct).

Court Disposition

Appeal partially allowed; cross-claims against solicitor dismissed; compensation orders made.

Orders

  • ['Accom to pay Kowalczuk $18,143.17 plus interest at court rates from 14 December 2005 until entry of judgment.' 'Accom to pay Mars $20,761.84 plus interest at court rates from 13 October 2006 until entry of judgment.' "Accom to pay two-thirds of Kowalczuk and Mars's appellate costs insofar as related to appeal...