Kenxue Pty Ltd ATF The Susan Investment Trust v Westpro Finance Pty Ltd

[2020] NSWSC 1146

Supreme Court of NSW

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Interrogate

Catchwords

1. Equity
2. › Unconscionable conduct
3. › Special disability or disadvantage
4. › Other party’s knowledge
5. › HELD: the First Defendant, through the Second Defendant, engaged in unconscionable conduct by taking advantage of the Plaintiff’s lack of experience and by failing to pass on material matter known to the Second Defendant and making statements implying loan was a prudent investment
6. › the unconscionable conduct was a material factor in the Plaintiff proceeding with the loan.
1. Civil Procedure
2. › Hearings
3. › Adjournment
4. › Defendants made an application to vacate the hearing on the basis it was to be conducted via AVL due to Covid-19 restrictions
5. › HELD: application to vacate hearing refused, consideration being given to various factors: see [14].
1. Evidence
2. › Opinion evidence
3. › Exceptions
4. › Expert opinion
5. › admissibility of evidence of banking practices contained in the expert report relied on by the Plaintiff
6. › the expert has many years’ of relevant experience and gave evidence of industry practice
7. › HELD: the expert’s report based on extensive experience of practice in the relevant area is admissible evidence of banking practice and should be received.
1. Agency
2. › Liability of agent
3. › For negligence and breach of duty
4. › Solicitor and client
5. › obligations of a solicitor retained to draft security documents
6. › HELD: the solicitor’s retainer was very limited. There was no negligence established and, in any event, the just and equitable apportionment of liability between a negligent solicitor and a defendant who deliberately withheld information and acted as the Defendants had done would require the entire liability to be borne by the Defendants.