Unsound Mind

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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Lawteal Finance v Chrapacz [2010] NSWSC 73

In this case the lender obtained default judgment and a writ of possession. The writ of possession was stayed pending repayment by the borrower. However, the borrower then filed an application to set aside the judgment and filed a defence. The defence raised arguments of unjustness under the Contracts Review Act and the Consumer Credit …

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Ford by his Tutor v Perpetual Trustees Victoria [2009] NSWCA 186

In this case the Father was illiterate, intellectually disabled and hoodwinked into signing the mortgage by his son.  Non est factum The father argued non est factum (literally ‘not my deed’) and succeeded before the trial judge. On appeal the lender argued that all highest defence that could be raised by the father was incapacity, …

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Farrell v Stephenson [2008] NSWSC 1350

A son and his wife procured transfers of his mother’s properties for little or no consideration (the transfer noted consideration of $1). No solicitors were used for the transfers and the mother never received independent legal advice. At the time the mother was elderly, suffering the early stages of Alzheimer’s Dementia, was easily manipulated and …

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HSBC Bank Australia v Chang [2008] NSWSC 948

The borrower’s daughter attempted to have herself appointed to run the possession proceedings on her behalf on the grounds of mental health. The judge held: I am not satisfied that the defendant has established that she is suffering under a legal incapacity… there is no evidence that she is incommunicate or unable to receive communications …

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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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