Undue Influence

Leonard v Bristrol Custodians [2013] NSWSC 1734

A solicitor included the following general charging clause in his costs agreement: .. upon acceptance of our offer, you hereby charge in favour of us all your right, title and interest over your assets, land, realty or otherwise, and hereby authorise us to lodge a mortgage or caveat over those assets to secure payment of …

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McIvor v Westpac Banking Corporation [2012] QSC 404

This case concerns the reversal of fortunes of the director/shareholder of the failed Gold Coast fund Equititrust. His mother gave a mortgage and guarantees to the bank in relation to the indebtedness of her son’s fund. The son’s fund failed to meet demands for payment of $12m and the bank sued the mother for possession. …

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Buccoliero v Commonwealth Bank of Australia [2011] NSWCA 371

This case concerns an appeal from a judgment of the Supreme Court (see CBA v Munro [2011] NSWSC 128) which granted the lender judgment for possession. The facts were that a wife, suffering from a mental disability and of lower than average intellect, refinanced her existing mortgage with a CBA mortgage and in addition, provided …

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CBA v Munro [2011] NSWSC 128

The majority of the funds were used to discharge a previous loan to the wife. The balance was paid to the husband. The wife made a Contracts Review Act defence claiming she was: On a disability pension; Suffering from a mental disability; Inexperienced in financial matters; Of a lower than average intellect; Unable to understand …

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Fast Fix Loans v Mladenko Samardzic [2011] NSWSC 19

Elderly parents mortgaged their home to secure their son’s borrowings. The mortgagee sued for possession upon the son’s default and the parents claimed undue influence and sought to have the loan and mortgage set aside under the Contracts Review Act 1980. Contracts Review Act claim The court did not believe the son. It made the …

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BankWest v Luo [2010] NSWSC 733

This was a claim by the lender for possession of the borrowers’ (a husband and wife) property that was secured by a mortgage, following their default in making repayments. The borrowers relied mainly on the defences of non est factum, undue influence, unconscionability (s 51AA of the Trade Practices Act 1974), and misleading and deceptive …

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Verduci v Golotta [2010] NSWSC 506

The borrowers sought to set aside a mortgage taken over the family home in 1988. The lender sought to enforce the mortgage. The interest rate on the mortgage was 20% per annum. This was not unusual, at the time of the loan the interest-rate on Court judgments was 18% per annum. The mortgage contained a …

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