Accom Finance Pty Limited v Mars Pty Limited, Accom Finance Pty Limited v Kowalczuk

[2007] NSWSC 726

Supreme Court of NSW

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Interrogate

Catchwords

1. Estoppel
2. › Res Judicata
3. › Issue estoppel
4. › Anshun estoppel
5. › Default judgment in action by mortgagee for possession and for money sum due under mortgages in first proceedings
6. › Defendant sought to bring cross claim for damages under Trade Practices Act
7. › Whether defendant estopped from bringing cross claim
8. › Issue raised in new proceedings must be on precise issue determined in original proceedings
9. › No estoppel
1. Equity
2. › Trade Practices Act
3. › Unconscionable conduct
4. › Where cross-claimant gave mortgage due to fraudulent conduct of third party
5. › Cross-claimants not in a position of special disadvantage
6. › Lender did not have knowledge of third party’s fraud
7. › No unconscionable conduct
1. Contracts
2. › Unjust contracts
3. › Contracts Review Act
4. › When contract “unjust”
5. › Where borrower did not have means to repay loan
6. › Where lender given fraudulent information about borrower’s ability to repay loan
7. › Where rates of interest unrelated to lender’s risk
8. › Where contract was a bad bargain
9. › Contract not unjust
10. › Whether strong possibility of default under mortgage triggering very high default rate could amount to predatory conduct
11. › Contracts Review Act 1980 ss 7, 8, 9
1. Legal Practitioners
2. › negligence and retainer - Duties and liabilities
3. › To client
4. › Solicitor advising on security documents
5. › Scope of duty
6. › No obligation to advise client on financial sense of mortgage
7. › No obligation to recommend client obtain financial advice
8. › Scope of Rule 45 of the Solicitor’s Practice Rules