Unconscionability (Equity)

Mizzi v Reliance Financial Services [2007] NSWSC 37

The plaintiff (Mizzi) was a widowed pensioner of Maltese origin with very limited English and very limited IQ. She was asked by her grandson Stefan Martin Allan for a mortgage over her home. She duly mortgaged her home to clients of RL Kremnizer and when the mortgage went into default proceedings were brought for possession. …

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Dean-Willcocks v Nothintoohard [2006] NSWCA 311

There was no element of unconscientiousness in the first mortgagee asserting its legal right, and in the circumstances no equitable lien arose. Equitable liens have been held to exist in a variety of circumstances to ensure that the costs of realisation are borne by the realised fund before any distribution to those otherwise entitled to …

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Clarkson v State Bank of New South Wales [2006] NSWSC 903

The borrower alleged: the Bank represented an overdrawn cheque account in his name would be “frozen” for a sufficient period of time to allow him to complete a subdivision of his residential property; the Bank represented it would delay legal proceedings for the recovery of outstanding debt, and that it would advance to him, against …

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Permanent Trustee Australia v Mary Gusevski [2005] NSWSC 1281

In this case a woman borrowed against her house at the urging of her partner and he dissipated the money. She defended the lender’s claim for possession with a Contracts Review Act defence and argued that the lender had behaved unconscionably under the general law. The lender joined the solicitor who had given independent legal …

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Dong v Monkiro [2005] NSWSC 749

A loan deed was entered into whereby the plaintiff agreed to lend the defendant $1.1 million for the purpose of a townhouse development. The issue arose of whether it was open for the loan agreement to operate retrospectively (in respect of payments already made) and whether interest payable on those amounts was a penalty. There …

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Steele-Smith v Liberty Financial [2005] NSWSC 398

The plaintiffs borrowed money from the second defendant, Liberty Funding (“LF”), secured over their land by mortgage. The plaintiffs claimed that the loan agreements and the mortgages were procured by fraud or unconscionable conduct or other wrongdoing and should be set aside.  The thrust of the Plaintiffs’ complaint was directed to alleged misconduct on the …

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Guardian Mortgages v Miller [2004] NSWSC 1236

The Plaintiff has brought these proceedings for an order for possession in relation to property at Bardwell Park and for an order for the judicial sale of a separate property (“the charged property”). The Defendant opposed the making of these orders, and by way of a cross-claim, sought relief against forfeiture. The Defendant entered in …

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Garas v Maharaj [2004] NSWSC 1157

The plaintiff provided some vendor finance at 20% to the defendants, Geoffrey Maharaj and Seini Maharaj on their purchase of his property. The amount of the loan is in dispute. Additionally, Mr and Mrs Maharaj claimed that the agreement in relation to interest was unjust in terms of the Contracts Review Act 1980 or the …

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Smith v Smith [2004] NSWSC 663

The plaintiff, Pauline Smith, was a woman aged 61 years. The defendant, Helen Smith, was her daughter. The proceedings involved a house property at Wyoming of which the plaintiff and the defendant were registered proprietors as tenants in common in equal shares. The property was purchased under a contract made in 2004. Completion occurred in …

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