Bank of Western Australia Limited v Maia Primanzon; Bank of Western Australia Limited v Violetta Primanzon and Alexandre Pachkovski

CATCHWORDS : CONTRACTS - claims by mortgagee for possession of land and monetary judgment following mortgage default - applications for summary judgment - borrowers seek to rely upon Contracts Review Act 1980 - whether Act has application - s.6(2) Contracts Review Act 1980 - business loans for restaurant and shop premises owned by borrowers and leased for commercial purposes - mortgages taken over shop premises as security for loan - whether loan agreements and mortgages were entered into in the course of or for the purpose of a trade, business or profession - borrowers carried on business of owning and leasing a portfolio of investment properties for commercial purposes - held that s.6(2) applied to exclude Contracts Review Act 1980 - summary judgment granted

Contracts Review Act 1980 LEGISLATION CITED : Real Property Act 1900 Civil Procedure Act 2005

Dey v Victorian Railway Commissioners (1949) 78 CLR 62 General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125 Webster v Lampard (1993) 177 CLR 598 Cosmos E-C Commerce Pty Ltd v Bidwell & Associates Pty Ltd [2005] NSWCA 81 Websdale v JD Investments Pty Limited (1991) 24 NSWLR 573 Ford v Perpetual Trustees Victoria Limited [2009] NSWCA 186; 75 NSWLR 42 Agricultural and Rural Finance Pty Limited v Atkinson [2010] NSWSC 635 Ellison v Vukicevic (1986) 7 NSWLR 104 CASES CITED : Commercial Bank Company of Sydney Limited v Pollard [1983] 1 NSWLR 74 Perpetual Trustee Company Limited v McAndrew [2007] NSWSC 1452 Westpac Banking Corporation v Bagshaw [2000] NSWSC 650 Sweeney v Howard [2007] NSWSC 852 Commonwealth Bank of Australia v Roubas [1997] NSWSC 475; BC9703751 Ferguson v Federal Commissioner of Taxation (1979) 37 FLR 310 Evans v Federal Commissioner of Taxation (1989) 20 ATR 922 Hogan v Howard Finance Limited (Court of Appeal, 3 July 1987, unreported, BC8701285) Capital Securitisation Ltd v Jammal [2007] NSWSC 1073

Bank of Western Australia Limited (Plaintiff) PARTIES : Maia Primanzon (Defendant in 2009/296166) Violetta Primanzon and Alexandre Pachkovski (Defendants in 2009/296384)

COUNSEL : Mr L Gor (Plaintiff) Ms GM Wilkinson (Defendants)

SOLICITORS : Kemp Strang (Plaintiff) Clamenz Corporate Lawyers (Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION POSSESSION LIST

2009/296166 Bank of Western Australia Limited v Maia Primanzon

2009/296384 Bank of Western Australia Limited v Violetta Primanzon and Alexandre Pachkovski

JUDGMENT (on applications by Plaintiff for summary judgment) 1 JOHNSON J: These are applications for summary judgment by the Plaintiff, Bank of Western Australia Limited, in two sets of proceedings which are related and have been heard together with the consent of the parties. 2 In the first set of proceedings (2009/296166), the Plaintiff seeks orders against the Defendant, Maia Primanzon, including possession of land being Shop 30, 281-283 Bourke Street, Darlinghurst and judgment for a sum exceeding $1 million ("the Darlinghurst proceedings"). 3 In the second set of proceedings (2009/296384), the Plaintiff seeks orders against the Defendants, Violetta Primanzon and Alexandre Pachkovski, including possession of land known as Shop 28, 23 Norton Street, Leichhardt and judgment for a sum exceeding $500,000.00 ("the Leichhardt proceedings").

The Darlinghurst Proceedings 4 The Darlinghurst proceedings were commenced by the filing of a Statement of Claim on 11 September 2009 alleging mortgage default on the part of Maia Primanzon and seeking judgment for possession and monetary judgment. 5 After attempts at service were apparently unsuccessful, an order for substituted service was made on 7 January 2010. In due course, Maia Primanzon was served. On 20 January 2010, a handwritten Defence was filed in the Darlinghurst proceedings. It said: "1. From 21/2 we have company who rented property. We put for sale, and wait for quote.

2. We don't have legal advice when sign document and don't know about penalty."

Maia Primanzon verified the Defence, describing her occupation as "worker" . 6 The proceedings came before Registrar Bradford on 30 April 2010. Maia Primanzon appeared in person. The Registrar ordered that an Amended Defence be filed and served by 30 April 2010 and listed the proceedings for a judicial directions hearing before me on 14 May 2010, in accordance with clause 16 of the Possession List Practice Note (SC CL 6). 7 On 30 April 2010, an Amended Defence was filed in the proceedings. Maia Primanzon verified the Amended Defence, describing her occupation as "civil engineer". 8 I observe that the Amended Defence contains a type of proforma recital of the matters sought to be relied upon for the purposes of ss.7 and 9 Contracts Review Act 1980. The following matters are pleaded:

(a) there was a material inequality in bargaining power between the parties to the agreement viz-a-viz the Plaintiff;

(b) the Defendant (or Defendants) dispute the provisions of the agreement as the Plaintiff led the Defendants to believe that she (they) had negotiated the agreement upon different terms;

(c) the educational background, financial ignorance and literacy of the Defendants meant that they were unable to appreciate the provisions of the agreement;

(d) the Defendants did not receive independent legal or other expert advice regarding the provisions and effect of the agreement;

(e) the practical consequences of the agreement were not accurately explained and consequently not understood by the Defendants resulting in the Defendants being unable to protect their own interests. 9 The Amended Defence provided no particulars of these areas of complaint. 10 The Darlinghurst proceedings came before me for directions on 14 May 2010. Directions were given for the Plaintiff to file and serve a Reply by 28 May 2010 and to file and serve any Notice of Motion for summary judgment by that day, with the Notice of Motion to be returnable before me on 25 June 2010. Directions were given for the Plaintiff to serve its evidence-in-chief by 2 June 2010 and the Defendant to serve her evidence in response by 23 June 2010. 11 On 2 June 2010, the Plaintiff filed a Reply which pleaded directly that the Defendant was not entitled to relief under the Contracts Review Act 1980 because of s.6(2) of that Act. 12 The Darlinghurst proceedings came before me again for directions on 25 June 2010. By this time, a solicitor was appearing for Maia Primanzon. The Plaintiff had served its evidence-in-chief. I fixed for hearing on 28 July 2010 the Plaintiff's summary judgment application. As Maia Primanzon had not served evidence in accordance with the direction made on 14 May 2010, I made an order that she serve evidence in response by 9 July 2010. 13 On 22 July 2010, the solicitor for Maia Primanzon filed an affidavit affirmed by her on 21 July 2010. The Court was informed that a draft of this affidavit had been served on the solicitor for the Plaintiff on 14 July 2010.

The Leichhardt Proceedings 14 On 24 September 2009, the Plaintiff commenced proceedings against Violetta Primanzon and Alexandre Pachkovski alleging mortgage default and seeking possession of the Leichhardt property together with monetary judgment. 15 On 20 January 2010, a handwritten Defence was filed in the Leichhardt proceedings which asserted: "1. I don't remember when I sign document for fixed loan because I don't sign.

2. We don't have legal advice about penalty I don't know."

Violetta Primanzon and Alexandre Pachkovski verified the Defence without stating their occupations. 16 The proceedings came before Registrar Bradford on 30 April 2010 and Violetta Primanzon and Alexandre Pachkovski appeared in person. The Registrar ordered that an Amended Defence be filed and served by 30 April 2010 and listed these proceedings for a judicial directions hearing before me on 14 May 2010, in accordance with the Possession List Practice Note. 17 On 30 April 2010, an Amended Defence was filed in these proceedings. The Amended Defence pleaded the Contracts Review Act 1980 in identical terms to Maia Primanzon, without any particulars of the areas of complaint (see [8] above). Violetta Primanzon verified the pleading, describing her occupation as "Home duties". Alexandre Pachkovksi also verified the pleading, describing his occupation as "worker handyman". 18 On 14 May 2010, the proceedings came before me for directions and I made orders corresponding to those made on that day in the Darlinghurst proceedings (see [10] above). 19 On 2 June 2010, the Plaintiff filed a Reply in the same terms as that filed in the Darlinghurst proceedings. 20 The proceedings came before me for directions on 25 June 2010, by which time the Defendants were represented by a solicitor, being the same solicitor who appeared for Maia Primanzon. Once again, I made orders corresponding to those made in the Darlinghurst proceedings (see [12] above). 21 On 22 July 2010, affidavits of Violetta Primanzon and Alexandre Pachkovski, both affirmed on 21 July 2010, were filed in the Registry. The Court was informed that drafts of these affidavits had been provided to the solicitor for the Plaintiff on 14 July 2010.

The Hearing on 28 July 2010 22 The hearing of the Plaintiff's summary judgment applications proceeded on 28 July 2010. The Plaintiff was represented by Mr Gor of counsel. The Defendants in both proceedings were represented by Ms Wilkinson of counsel. 23 A number of affidavits were read at the summary judgment hearing. There was no oral evidence. 24 In the Darlinghurst proceedings, the Plaintiff read the following affidavits:

(a) affidavit of Shane Dickson sworn 3 June 2010 (and associated documents in Exhibit SD1);

(b) affidavit of service of Joseph Khoury sworn 28 October 2009 (concerning service on the occupier of the Moroccan Restaurant located at the subject premises). 25 Ms Wilkinson read the affidavit of Maia Primanzon affirmed 21 July 2010. 26 I pause to observe that there was no issue at the hearing of the summary judgment application in the Darlinghurst proceedings that Maia Primanzon had entered into an agreement and mortgage with the Plaintiff over that property, that there had been default under the mortgage and that notices had been served including a notice under s.57(2)(b) Real Property Act 1900. The only contested issues in the summary judgment application were whether the Contracts Review Act 1980 (as pleaded in the Amended Defence) had application at all in the circumstances of this case and, if it did, whether summary judgment ought be granted to the Plaintiff. 27 A similar position arose with the Leichhardt proceedings. The Plaintiff read the following affidavits:

(a) affidavit of Shane Dickson sworn 3 June 2010 (and associated documents in Exhibit SD1);

(b) affidavit of service of Joseph Khoury sworn 14 October 2009 (concerning service on the occupier of the business name "Forum Dry Cleaners" located at the subject premises). 28 Ms Wilkinson read the affidavits of Violetta Primanzon and Alexandre Pachkovski, both affirmed on 21 July 2010. 29 There was no issue that Violetta Primanzon and Alexandre Pachkovski had entered into an agreement and mortgage with the Plaintiff over the subject property, that there was default under the mortgage and that relevant notices had been served on them including a notice under s.57(2)(b) Real Property Act 1900. Once again, the disputed issues concerned the application of the Contracts Review Act 1980 (as raised in the Amended Defence) and the question whether, if that Act could apply, whether the Plaintiff had made out a case for summary judgment.

Applicable Principles on Summary Judgment Application 30 Before a Court will give summary judgment to a Plaintiff, it is necessary for the Court to reach a high level of satisfaction that the orders should be made. The principles are well known - a very clear case is required before summary judgment is granted and the power to order summary judgment should be sparingly employed: Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125 at 129; Webster v Lampard (1993) 177 CLR 598 at 602-3; Cosmos E-C Commerce Pty Ltd v Bidwell & Associates Pty Ltd [2005] NSWCA 81 at paragraphs 37-38.

Evidence in the Proceedings 31 I will set out the evidence in the proceedings which bears upon the issues falling for determination on the summary judgment applications.

The Darlinghurst Proceedings 32 The evidence reveals that, on or about 18 June 2008, in response to an application made by Maia Primanzon, the Plaintiff made an offer to lend her the sum of $994,447.00 to pay out her then existing loan with the Plaintiff in the form of a Business Edge Loan which had been taken out in December 2006. The 2006 loan was secured by a mortgage over the Darlinghurst property (which operated as a Moroccan restaurant). 33 Amongst the documents provided by Maia Primanzon in support of the 2006 loan application were account records held with the National Australia Bank for an account in the names of Maia Primanzon, Alexandre Pachkovski and Violetta Primanzon (Exhibit SD1, pages 122-127). The application for the 2006 loan reveals that Maia Primanzon was a "builder/engineer" and that the purpose of the loan was to refinance a commercial investment property at Darlinghurst (Exhibit SD1, page 128). A valuation report dated 3 November 2006 was provided to the Plaintiff in which the Moroccan Restaurant at Darlinghurst was described, with the premises being valued at $1.4 million (Exhibit SD1, pages 136-152). The report stated that the Moroccan Restaurant was subject to a three-year lease from December 2005 with the lessees being Omar Majdi and Alexandre Pachkovski (Exhibit SD1, page 242). The then current rent was $109,500.00 per annum (Exhibit SD1, page 143). The 2006 loan was secured by a mortgage over the Darlinghurst property (Exhibit SD1, page 169). 34 The evidence reveals that Maia Primanzon utilised the services of a broker, Alex Rodov, for the purposes of the 2006 loan application (Exhibit SD1, page 155). 35 Maia Primanzon provided to the Plaintiff a copy of her income tax return for the year ending 30 June 2008 (Exhibit SD1, page 223). According to the tax return, Maia Primanzon's main business or professional activity was said to be that of a "builder/engineer" (Exhibit SD1, page 225). Her total business income was $266,406.00 with the nett income declared as $135,270.00. Gross rent was declared at $131,000.00 with interest deductions of $100,365.00, capital works deductions of $4,208.00 and other rental deductions of $8,043.00, leaving a nett rent income of $18,394.00 (Exhibit SD1, page 225). 36 Rental property statements for 2008 revealed the Darlinghurst premises (first rented on 1 July 2003) with a gross rental income of $119,500.00 and a nett rent of $28,059.00 (Exhibit SD1, page 228). A rental property statement was provided as well for Shop 4, 23 Norton Street, Leichhardt (first earning rental income on 1 July 2004) with a declared gross rental income of nil and, after expenses, a loss of $9,516.00 (Exhibit SD1, page 229). A further rental property statement concerned Shop 2, 23 Norton Street, Leichhardt (first earning rental income on 1 July 2007) with a gross rental income of $11,500.00 and, after expenses, a nett rent loss of $159.00 (Exhibit SD1, page 230). These shops were located in the Italian Forum at Leichhardt. 37 On 20 June 2008, Maia Primanzon signed the facility terms document which was foundational to the 2008 agreement and mortgage over the Darlinghurst property. Maia Primanzon's signature was witnessed by Vitaliy Ryk, who was the lessee of "Forum Dry Cleaning" at the Italian Forum in Leichhardt, which is the subject of the proceedings against Violetta Primanzon and Alexandre Pachkovski. The facility terms document was provided to Maia Primanzon by the Plaintiff under cover of a letter dated 18 June 2008 (Exhibit SD1, page 50). I infer that Maia Primanzon received these documents and had an opportunity to examine them, before signing the document in the presence of a person whom she knew, namely the tenant of the Leichhardt property. 38 The terms of the facility agreement, the five-page document signed by Maia Primanzon on 20 June 2008, included the following:

(a) the loan amount of $994,447.00 was to be used to pay out the existing Business Edge Loan;

(b) the Defendant was to pay interest on the loan amount of $994,447.00 at the rate fixed on the date on which the loan amount was applied for its purpose, plus a margin of 1.25%, such rate to be confirmed by the Plaintiff;

(c) the Defendant was to pay interest monthly in arrears;

(d) a first-ranking registered mortgage over the Darlinghurst property would secure the financial accommodation provided to the Defendant;

(e) the Defendant represented and warranted to the Plaintiff that the financial accommodation would only be used for business or investment purposes;

(f) the Defendant acknowledged and agreed that: (i) she had made her own independent decision and had not relied on the Plaintiff with respect to the decision to enter into the facility agreement,

(ii) the representations and warranty at (e) above were true, and

(iii) the Plaintiff had relied on the Defendant's representations and warranties,

(g) the Defendant acknowledged that the Plaintiff had recommended that she obtain independent financial and legal advice prior to entering into the facility agreement. 39 Also provided with the Plaintiff's letter of offer of 18 June 2008 was a copy of the Plaintiff's General Terms for Business Lending dated December 2007 (Exhibit SD1, page 56ff). This document made detailed provision concerning the terms of the loan offered, including action to be taken in the event of default (clause 16) and provision for payment of interest at an overdue rate in the event of default (clause 16.3). The "overdue rate" was defined as in clause 22 (Exhibit SD1, page 85). As will be seen, the Plaintiff sought to apply a 2% overdue rate when default occurred, a rate which was significantly less than that which was available to it in accordance with the contractual definition. 40 On about 10 July 2008, the Plaintiff applied the loan amount of $994,447.00 in a manner agreed with the Defendant. In accordance with the facility agreement, the first transaction account statement informed Maia Primanzon that the interest rate applicable to the loan amount under the agreement was 9.37% per annum (Exhibit SD1, page 239). 41 On about 10 January 2009, the Plaintiff did not receive the interest payment due on that date and the account fell into arrears. 42 On about 11 March 2009, the Plaintiff sent a letter to Maia Primanzon informing her of the arrears and stating that, unless the account was regularised and interest payments were made on the due date, the Plaintiff would apply a margin of 2% from 8 April 2009 (Exhibit SD1, page 247). 43 The Plaintiff did not receive payments of interest on the due dates and, on 8 April 2009, the Plaintiff sent a letter to Maia Primanzon informing her that the account had not been brought into order and that the interest rate applicable had been increased by 2% (to 11.37%) (Exhibit SD1, page 248). 44 The demand was not satisfied within the seven-day period stipulated in the letter of 8 April 2009 and, by 7 July 2009, Maia Primanzon was in arrears by the sum of $42,461.12. 45 On 8 July 2009, a Notice of Demand was served on the Defendant, stating that the total amount payable as at 7 July 2009 was $1,134,975.35 (Exhibit SD1, pages 249-251). Mr Gor acknowledged that the Notice contained an erroneous claim for $70.00 in bank fees and a misdescription (as an early termination fee) of break costs which were correctly quantified at $89,210.06. These errors carried over into the s.57(2)(b) Default Notice dated 20 July 2009 which was served on Maia Primanzon on 21 July 2009. Ms Wilkinson did not submit that anything turned on the $70.00 error or the misdescription of costs otherwise chargeable. I do not consider that these errors are material and they may be disregarded for the purpose of this application. The Plaintiff identified the particular defaults in the s.57(2)(b) Notice: Websdale v JD Investments Pty Limited (1991) 24 NSWLR 573 at 578-589. 46 It was the evidence of Mr Dickson that, as at 25 May 2010, Maia Primanzon was in arrears under the 2008 facility agreement and mortgage in the sum of $1,149,171.65 and that, since 8 April 2010, interest at the rate of 11.37% had been accruing on $994,447.00 at a daily rate of $355.32. 47 Mr Dickson deposed that he had read the Amended Defence filed 30 April 2010 and expressed the belief that Maia Primanzon had no defence to the claim for possession of the property or judgment for the monies due under the facility agreement and the mortgage. Accordingly, the requirement of Part 13.1(1)(b) Uniform Civil Procedure Rules 2005 ("UCPR") has been met. 48 The affidavit of Maia Primanzon affirmed 21 July 2010 said that she was seeking the exercise of the Court's discretion to grant relief under the Contracts Review Act 1980 in respect of the loan agreement with the Plaintiff. She stated that her understanding of English was "not advanced" and that she had emigrated from Uzbekistan to Australia and that English was "a second language" (paragraphs 4-5). 49 With respect to the 2008 loan application, Maia Primanzon stated that in or about June 2008, she had a conversation with an unidentified representative of the Plaintiff in words to the following effect: Representative: "What are you seeking to borrow money for?" MP: "I want to get a new loan for my investment property because the loan repayments are too high." Representative: Ok, but we will have to check some things before we can loan you more money." MP: "Can you tell me what documents I need and I can provide these things to you?" 50 Maia Primanzon states that the Plaintiff's representative advised her that they would undertake an analysis of her financial situation and she provided the Plaintiff with documents as requested (paragraph 11). 51 In relation to the amount to be repaid, Maia Primanzon asserted that she understood that she would have to pay the amount which was borrowed plus interest and that the way the Plaintiff explained this to her, she understood the new loan to be the same as her previous loan except that the amount to be repaid over the life of the loan would be lower. She stated that a conversation with an unnamed employee of the Plaintiff took place at an unspecified time to the following effect (paragraph 15): MP: "I'm having difficulty with paying out my existing loan with the bank and I want to be able to afford to pay my loan in the future." Representative: "If the bank provides you with a loan, the terms of the loan will be a bit different to your existing loan such that the repayments will be lower, but over the life of the loan you will have repaid a higher amount." MP: "Ok, if this is the only way I can pay the loan then I will have to accept." 52 Maia Primanzon stated that she had never defaulted on any loan agreement entered into by her prior to the 2008 loan. She stated (paragraphs 18-21): "18. Given that the repayments under the old loan were entered into were too high and I did not want to keep incurring this further interest, I had to renegotiate the loan quickly. Consequent, I did not seek legal advice and agreed to the loan. 19. Having never previously defaulted under a loan at that time, I was unaware that the Plaintiff could, and would, apply a margin of 2% from when my loan account fell into arrears. The Plaintiff increased the interest rate by 2% on or about 8 April 2009.

20. If the margin of 2% had been notified to, or understood by, me, I would have negotiated the terms of the loan differently. If, for example, the Facility Terms of the loan agreement outlined an interest rate of 11.37% but gave a rate of 9.37% until an act of default occurred, then I would have understood the agreement I was entering into.

21. The first time I was made aware that the Plaintiff could increase the interest rate was on or about 11 March 2009. Annexed hereto and marked 'A' is a letter advising of the increase in the interest rate." 53 Maia Primanzon stated that the Darlinghurst premises had been originally purchased as empty storage space and, using her building management skills, she had refurbished the space and installed facilities so that a restaurant could be operated there (paragraph 25). 54 Maia Primanzon stated that she undertook studies to be a builder/engineer in Uzbekistan. She stated her occupational background was not in the establishment and operation of restaurants, although she did assist in the operation of a restaurant/bar at which her husband was a cook. She said that, in her position as a builder/engineer, she assisted with various building jobs which included painting services (paragraph 33). Ms Wilkinson submitted that this evidence touched upon the question of the application of the Contracts Review Act 1980, given submissions made by reference to s.6(2) of that Act, to which reference will shortly be made.

Evidence Concerning the Leichhardt Premises 55 On about 18 June 2008, in response to an application by Violetta Primanzon and Alexandre Pachkovski, the Plaintiff made an offer to lend them the sum of $520,000.00 to pay out their then existing Business Edge Loan with the Plaintiff. 56 The Leichhardt Defendants had taken out the Business Edge Loan in 2005, with the facility to be secured by a mortgage over the Leichhardt property. The signatures of the Defendants on the 2005 mortgage concerning the Leichhardt property were witnessed by Vitaliy Ryk (Exhibit SD1, page 176). 57 On 20 June 2008, Violetta Primanzon and Alexandre Pachkovski signed the facility terms document with respect to the loan, with their signatures being witnessed by Mr Ryk. The inference is open and ought be drawn that Maia Primanzon, Violetta Primanzon and Alexandre Pachkovski signed the facility terms with respect to the Darlinghurst property and the Leichhardt property on the same day, and in the presence of the same witness. It ought be inferred that they had an opportunity to read and understand the content of the facility terms document prior to signature. 58 Also accompanying the Plaintiff's letter of 18 June 2008 was a copy of the Plaintiff's General Terms for Business Lending as at December 2007 (Exhibit SD1, page 57ff). This document was identical to the document provided to Maia Primanzon which was referred to at [39] above. It ought be inferred that the Defendants had read that document as well. 59 The facility agreement executed by Violetta Primanzon and Alexandre Pachkovski included the following provisions:

(a) the loan amount of $520,000.00 was to be used to pay out their existing Business Edge Loan with the Plaintiff;

(b) the Defendants were to pay interest on the loan amount of $520,000.00 at the rate fixed on the date on which the loan amount was applied for its purpose plus a margin of 1.25%, such rate to be confirmed by the Plaintiff;

(c) the Defendants were to pay interest monthly in arrears;

(d) a first-ranking registered mortgage over the Leichhardt property was to secure the financial accommodation provided to the Defendants;

(e) the Defendants represented and warranted to the Plaintiff that the financial accommodation would only be used for business or investment purposes;

(f) the Defendants acknowledged and agreed that: (i) they had made their own independent decision and had not relied on the Plaintiff with respect to their decision to enter into the facility agreement,

(ii) the representation and warranty referred to at (e) above were true, and

(iii) the Plaintiff had relied on the Defendants' representations and warranties,

(g) the Defendants acknowledged that the Plaintiff had recommended that they obtain independent financial and legal advice prior to entering the facility agreement. 60 The Defendants had entered into a three-year lease commencing 20 May 2008 with Mr Ryk as tenant with respect to the commercial laundry and dry cleaners trading as "Forum Dry Cleaners" at Shop 28 of the Italian Forum, with a minimum rent of $45,000.00 per annum (Exhibit SD1, pages 195-253). It is noteworthy that Violetta Primanzon and Alexandre Pachkovski had a solicitor, Mr John Denes, assisting them with aspects of the commercial lease of the Leichhardt property as at August 2008 (Exhibit SD1, page 253). 61 The Leichhardt Defendants provided to the Plaintiff copies of their income tax returns for 2006, 2007 and 2008. Alexandre Pachkovski provided 2008 rental property statements with respect to the following properties (Exhibit SD1, pages 309-315):

(a) Shop 3 at the Italian Forum (first earning rental income on 1 July 2007) with a gross rental income of nil and, after expenses, a loss of $9,516.00;

(b) 33-35 Rowe Street, Woollahra (first earning rental income on 1 July 2004) with a gross rental income of $64,667.00 and a nett rental income of $7,178.00;

(c) 9/15 Diamond Bay Road, Vaucluse (first earning rental income on 1 July 2004) with a gross rental income of $28,060.00 and, after expenses, a nett rental income of $867.00;

(d) 18/26 Kings Cross Road, Potts Point (first earning rental income on 1 July 2004) with a gross rental income of $11,307.00 and a nett rental of $6,296.00;

(e) Shop 28 at the Italian Forum (first earning rental income on 1 July 2004) with a gross rental income of $24,130.00 and, after expenses, a nett rental loss of $602.00;

(f) 223 Crown Street, Darlinghurst (first earning rental income on 1 July 2006) with a gross rental income of $26,000.00 and a nett rental income of $2,589.00;

(g) Shop 2 at the Italian Forum (first earning rental income on 1 July 2007) with a gross rental income of $11,500.00 and, after expenses, a nett rental loss of $159.00. 62 In his tax return for the financial year ending 30 June 2008, Alexandre Pachkovski described his main business or professional activity as "Painter and Air Conditioning Service" with a total business income of $194,460.00 and a nett income of $159,398.00. His gross rental income was $165,664.00 with a nett rental income of $6,653.00 (Exhibit SD1, page 306). 63 In her tax return for the year ending 30 June 2008, Violetta Primanzon described her main occupation as "Administration Manager". Her gross income was declared as $133,284.00 with a nett income of $111,024.00. Gross rental income was declared at $139,664.00 with a nett rental income of $4,064.00 (Exhibit SD1, page 320). 64 The 2008 rental property statements disclosed the following holdings by Violetta Primanzon (Exhibit SD1, pages 321-326):

(a) 33-35 Rowe Street, Woollahra (first earning rental income on 1 July 2004) with a gross rental income of $64,667.00 and a nett rental income of $7,178.00;

(b) 9/15 Diamond Bay Road, Vaucluse (first earning rental income on 1 July 2004) with a gross rental income of $28,060.00 and a nett rental income of $867.00;

(c) 18/26 Kings Cross Road, Potts Point (first earning rental income on 1 July 2004) with a gross rental income of $11,307.00 and a nett rental income of $6,296.00;

(d) Shop 28 at the Italian Forum (first earning rental income on 1 July 2004) with a gross rental income of $24,130.00 and, after expenses, a nett rental loss of $602.00;

(e) Shop 3 at the Italian Forum (first earning rental income on 1 July 2007) with a stated gross rental income of nil and, after expenses, a nett rental loss of $9,516.00;

(f) Shop 2 at the Italian Forum (first earning rental income on 1 July 2007) with a gross rental income of $11,500.00 and a stated nett rental loss of $159.00. 65 It is noteworthy that Violetta Primanzon, Maia Primanzon and Alexandre Pachkovski each executed a document in December 2007, which was provided to the Plaintiff, with the document revealing the estimated value of the following properties, described as "other assets/investments" (Exhibit SD1, pages 337-338):

(a) the Darlinghurst property - estimated value $1.6 million;

(b) Shop 2 at the Italian Forum - estimated value $1.6 million;

(c) Shop 3 at the Italian Forum - estimated value $1.6 million;

(d) 233 Crown Street, Darlinghurst - estimated value $1.2 million;

(e) 33-35 Rowe Street, Woollahra - estimated value $4.2 million;

(f) 18/26 Kings Cross Road, Potts Point- estimated value $450,000.00;

(g) 9/15 Diamond Bay Road, Vaucluse - estimated value $1.1 million;

(h) Shop 28 of the Italian Forum - estimated value $750,000.00. 66 On or about 14 April 2009, the Plaintiff did not receive the interest payment due from the Leichhardt Defendants and the account fell into arrears. 67 On about 23 April 2009, the Plaintiff sent a letter to the Defendants informing them of the arrears and indicating that, unless the account was regularised and interest payments were made on the due date, the Plaintiff would apply a margin of 2% from 21 May 2009 (Exhibit SD1, page 366). 68 The Plaintiff did not receive payments of interest on the due dates and, on 4 June 2009, the Plaintiff sent a letter to the Defendants informing them that the account had not been brought into order, and that the interest rate applicable had been increased by 2%, giving an interest rate of 11.505% per annum (Exhibit SD1, page 367). The demand was not satisfied within the period stipulated in the letter of 4 June 2009. 69 As at 20 July 2009, the Defendants were in arrears by the sum of $21,676.40. On 21 July 2009, a Notice of Demand bearing that date was served on the Defendants (Exhibits SD1, pages 368-370). 70 The Defendants did not pay to the Plaintiff the sum of $564,928.72 by 29 July 2009 and, on 30 July 2009, the Plaintiff served a default notice for the purpose of s.57(2)(b) Real Property Act 1900 (Exhibit SD1, pages 371-379). 71 The Defendants did not pay the sum due under that notice and, as at 25 May 2010, the Defendants were in arrears under the facility agreement and mortgage in the sum of $598,940.12. 72 Mr Dickson avers that he has read the Amended Defence filed 30 April 2010 and believes that the Defendants have no defence to the claim for possession or for judgment for the monies due under the facility agreement and the mortgage. That requirement of Part 13.1(1)(b) UCPR has been met. 73 The affidavits of Violetta Primanzon and Alexandre Pachkovski, both affirmed 21 July 2010, are very similar to the affidavit of Maia Primanzon referred to earlier (at [48] to [52]). 74 Alexandre Pachkovski describes his occupation as a tradesman and states that his understanding of English is not very advanced as he emigrated from Uzbekistan to Australia and English is his second language (paragraph 4). 75 With respect to the subject loan agreement, Mr Pachkovski states (in paragraph 9) that he and Violetta Primanzon, in about June 2008, had a conversation with an unnamed representative of the Plaintiff in almost identical terms to that deposed to by Maia Primanzon (with "we" being substituted for "I" and specific reference made to the property being located at Leichhardt). He repeats (at paragraph 15) the conversation alleged by Maia Primanzon set out above. At paragraphs 18-21 of his affidavit, Alexandra Pachkovski repeats in identical terms paragraphs 18-21 of Maia Primanzon's affidavit set out at [52] above. 76 Mr Pachkovski states that at the time of entering into the 2008 loan agreement, he was employed as a painter and that his occupation was as a tradesman who worked as a painter and as an air conditioning serviceman (paragraphs 22-26). 77 As with the other Defendants, Violetta Primanzon states that her understanding of English is "not advanced" and that she emigrated from Uzbekistan to Australia and that English is a second language (paragraphs 4-5). 78 With respect to the 2008 loan agreement, Violetta Primanzon (at paragraph 10) recites an almost identical conversation with an unnamed representative of the Plaintiff as that given by Maia Primanzon above. At paragraph 15 of her affidavit, Violetta Primanzon gives an identical version of a conversation with an unnamed representative of the Plaintiff as that given by Maia Primanzon above. Paragraphs 18-21 of the affidavit of Violetta Primanzon are identical to the corresponding parts of the affidavits of Maia Primanzon and Alexandra Pachkovski. 79 Violetta Primanzon states that her occupation in June 2008 was that of an administration manager and that she was employed by Manly Painting at the time of entering into the loan agreement. She provides certain information in her affidavit concerning past and present property interests.

The s.6(2) C ontracts Review Act 1980 Issue 80 The Plaintiff's Reply filed in each of the proceedings on 2 June 2010 asserted that the Defendants entered into each of the agreements and the mortgages in the course of or for the purpose of her or his trade, business or profession carried on wholly in the State of New South Wales and, as a result, the Defendants were not entitled to any relief under the Act because of the provisions contained in s.6(2) Contracts Review Act 1980. 81 Section 6(2) Contracts Review Act 1980 provides as follows: "6 Certain restrictions on grant of relief

(2) A person may not be granted relief under this Act in relation to a contract so far as the contract was entered into in the course of or for the purpose of a trade, business or profession carried on by the person or proposed to be carried on by the person, other than a farming undertaking (including, but not limited to, an agricultural, pastoral, horticultural, orcharding or viticultural undertaking) carried on by the person or proposed to be carried on by the person wholly or principally in New South Wales" 82 Put shortly, Mr Gor submitted that, at the relevant time in 2008, each of the Defendants were carrying on the business of investment in property and the letting out and collection of rental income from those properties. He submitted that the Defendants entered into loan agreements and mortgages with the Plaintiff in 2008 for the purposes of the Defendants' business of property investment. Mr Gor submitted that the fact that each Defendant worked in other capacities as well did not prevent a finding adverse to them under s.6(2) of the Act. He submitted that the position was clear cut and indisputable on the evidence so that a finding ought be made to the requisite standard for a summary judgment application that s.6(2) applied to each of the Defendants so that relief under the Act was not open to them. 83 Ms Wilkinson submitted that none of the Defendants was caught by s.6(2) of the Act in that they were not conducting the trade, business or profession of property managers or property investors. She submitted that each Defendant had the occupation as stated by them in their tax returns and affidavits. Ms Wilkinson pointed to the limited nett income stream to the Defendants from rental properties disclosed in the evidence. She submitted that s.6(2) required the Court to consider the primary or predominant trade, business or profession of a person and that, in the case of each Defendant, the primary or predominant occupation was that asserted by the particular Defendant. Ms Wilkinson submitted that, even if there was an argument on this issue contrary to the Defendants, the position was not so clear cut that the Court should resolve the issue against them on a summary judgment application. 84 It has been said that the application of s.6(2) should be looked at as a matter of substance and not form: Ford v Perpetual Trustees Victoria Limited [2009] NSWCA 186; 75 NSWLR 42 at 65 [98]; Agricultural and Rural Finance Pty Limited v Atkinson [2010] NSWSC 635 at [29]. 85 The words "trade, business of profession" are very wide and cover the whole gamut of professional and commercial activity: Ellison v Vukicevic (1986) 7 NSWLR 104 at 111. The expression "for the purpose of" has the meaning that the contract under consideration is entered into as an ordinary incident of the carrying on of a particular trade, business or profession then being carried on or proposed to be carried on: Ellison v Vukicevic at 111. 86 In Commercial Bank Company of Sydney Limited v Pollard [1983] 1 NSWLR 74, Rogers J considered (at 78-80) a submission on a summary judgment application by reference to s.6(2) Contracts Review Act 1980. His Honour was not satisfied that the Plaintiff had shown that the Act was inapplicable in that case by reason of the statutory exclusion. Further, his Honour observed (at 80) that it was inappropriate that a defence under the Contracts Review Act 1980 should be dealt with on an application for summary judgment upon the basis that the Defendants had failed to adduce any evidence on the merits to sustain the defence so propounded. Ms Wilkinson referred to the judgment of Harrison AsJ in Perpetual Trustee Company Limited v McAndrew [2007] NSWSC 1452 where her Honour, at [26], adopted the approach of Rogers J in Commercial Banking Company of Sydney Limited v Pollard. 87 Section 6(2) of the Act has been applied in a number of cases to exclude an application for relief: Westpac Banking Corporation v Bagshaw [2000] NSWSC 650 at [46]; Sweeney v Howard [2007] NSWSC 852 at [67]. 88 Ms Wilkinson relied upon the decision of Hunter J in Commonwealth Bank of Australia v Roubas [1997] NSWSC 475; BC9703751 at 49-50. After referring to authorities concerning the meaning of the term "business", Hunter J said: "With respect, I would adopt that view as a guide to the application of s6(2) to the facts of this case. In my opinion, the circumstances the subject of this litigation disclose not the acquisition of loan facilities for the purpose of a trade or business carried on by the Roubases or proposed to be carried on by them. At the time the Roubases were full time sign writers in carrying on their own business of sign writing from premises which they owned and in which they resided at Mortlake. Through Topden, the Rooty Hill property had been acquired which was a mixture of rental producing units consisting of three retail shops and associated dwellings. Their interest in that company in my view does not amount to the carrying on of any business by them (see Toscano v Holland Securities Pty Ltd (1985) 1 NSWLR 145 at 149 and Australian Bank Ltd v Stokes (1985) 3 NSWLR 174 at 176). The West Ryde property was also an income producing property. Even if one were to treat the Topden activities as those of the Roubases, I am far from persuaded that the subject loan was in any sense "entered into as an ordinary incident of the carrying on of (any) particular trade or business ... then being carried on or proposed to be carried on". I would distinguish that description of a contract of loan from one, as in this case, entered into to permit the Roubases to obtain an income producing investment in which any involvement of the Roubases was consistent with their continuation of the full time conduct of their sign writing business and the giving of karate teaching lessons by Roubas. Indeed, that income was a not an insignificant element in the consideration of their capability of servicing the May loan in addition to their other commitments. Accordingly I make the following orders." 89 What does the evidence reveal in the present case with respect to these Defendants? The focus of attention must be upon the substance and not the form in considering this issue. 90 The question to be considered is whether the agreements and mortgages in these cases were entered into in the course of or for the purpose of a trade, business or profession carried on by the Defendants wholly or principally in New South Wales. I do not consider that there is any warrant for reading into s.6(2) qualifications such as the "primary" or "predominant" trade, business or profession of the person. A person may carry on more than one trade, business or profession. It will be a question of fact in each case to consider what finding should be made in the light of the evidence. Of course, on a summary judgment application, a finding adverse to a defendant should only be made when the demanding test referred to at [30] above is made out. 91 I am satisfied that, at the time when the loan agreements and subsequent mortgages were entered into in 2008, each of the Defendants was engaged in the business of owning valuable commercial premises which were leased out for rental return. They did so in person and not through a company. The evidence reveals that each Defendant was engaged in such a business with respect to different premises, in different locations, being conducted for different purposes. The purpose of each Defendant engaging in this business was to rent the premises for profit. The Darlinghurst property operated as a restaurant. The Leichhardt property operated as a commercial laundry and dry cleaning business. 92 In their 2008 tax returns, each of Violetta Primanzon and Alexandre Pachkovski provided the same home address in South Coogee which was different from any of the premises which were disclosed as rental properties (Exhibit SD1, pages 304, 318; Exhibit SD1 page 223 re Maia Primanzon). None of the premises specified as rental properties by the Defendants were used by them for residential purposes. As revealed in the Defendants' own application to the Plaintiff, these were valuable properties rented for a range of commercial purposes. 93 Although not determinative in these circumstances, it is helpful to consider some of the criteria commonly used by courts to identify the existence of a business for taxation purposes. The fact that the Defendants have repeatedly and regularly derived rental income from a growing portfolio of commercial properties in the Sydney area for the purpose of profit-making since at least 2004, and have done so in an organised and business-like manner by the keeping of books and records, tends to fortify a conclusion that they were conducting a business of managing properties when the relevant loans were entered into: Ferguson v Federal Commissioner of Taxation (1979) 37 FLR 310 per Bowen CJ and Franki J at 314. That the Defendants were concurrently engaged in the practice of other professions does not preclude a finding that these additional activities constituted the carrying on of a business: Ferguson v Federal Commissioner of Taxation at 314. The scale of the Defendants' activities, given the estimated value of their "other assets/investments" described by them in 2007 (see [65] above), is also indicative of the existence of a business: Evans v Federal Commissioner of Taxation (1989) 20 ATR 922 at 939. 94 In my view, the position is clearly distinguishable from that referred to by Hunter J in Commonwealth Bank of Australia v Roubas. The Defendants carried on the business of operating a portfolio of investment properties in different parts of Sydney for gain, and the agreements and mortgages entered into by them with he Plaintiff were directly for this purpose. 95 I have had regard to the description given by each Defendant to their occupation in considering this question. I do not accept the submission of the Defendants that, before s.6(2) can apply, it is necessary in effect that the Defendants be considered to carry on the business of property managers. Each of the Defendants owned a range of valuable properties which were rented for different purposes and produced an income. The fact that some may have produced a greater rental income than others is not to the point. The test in s.6(2) is not whether the person was carrying on a successful or profitable trade, business or profession. 96 I have taken into account the circumstances of each Defendant in considering this issue. The case of each Defendant has been considered individually, although it is obvious that there is very substantial overlap as between the Defendants and the evidence which bears upon this issue. 97 It is entirely clear that the agreements and mortgages under present consideration were entered into for the purpose of the business of the portfolio of commercial properties rented out by the Defendants. In the circumstances of these cases, I am well satisfied that the demanding test for summary judgment has been made out so that s.6(2) may be called in aid by the Plaintiff with the consequence that each Defendant cannot rely upon a claim for relief under the Contracts Review Act 1980. 98 I am satisfied that the plaintiff has made good its claim for summary judgment in each case as the Contracts Review Act 1980 has no application. As that statute was the sole basis of the Defendants' cases, then it is appropriate that the Plaintiff have summary judgment in each proceeding.

The Position if s.6(2) Did Not Apply 99 If the point had been reached where s.6(2) had no application so that the Defendants could seek to rely upon the Contracts Review Act 1980, then it would be necessary to consider whether summary judgment should be granted to the Plaintiff in this case. I will consider this issue in the event that a different view was taken with respect to my approach to s.6(2) in these proceedings. 100 A summary judgment application is not usually the occasion when a Court determines a claim for discretionary relief such as that under the Contracts Review Act 1980 adverse to the party seeking to invoke the statute. However, summary judgment may be granted in an appropriate case in these circumstances: Hogan v Howard Finance Limited (Court of Appeal, 3 July 1987, unreported, BC8701285). It is necessary to consider the circumstances of the particular case, bearing in mind the demands of the test for summary judgment and the reluctance of Courts to determine a discretionary claim of this type at the summary judgment stage. 101 It is appropriate to make some observations concerning the progress of the litigation. These proceedings have been on foot since September 2009. Each of the Defendants filed an Amended Defence on 30 April 2010. In early June 2010, the Defendants were served with the Plaintiff's evidence-in-chief, including the lengthy affidavits sworn by Mr Dickson in each of the proceedings. The Defendants somewhat belatedly instructed a solicitor, but have had the advantage of legal advice, and the Plaintiff's documentary case for the purpose of preparing affidavits which were filed on 22 July 2010. 102 The affidavits of the Defendants affirmed 21 July 2010 provided generalised statements of the type to which I have already made reference in this judgment. 103 The Defendants are very experienced investment property owners and borrowers. The evidence points clearly to each of the Defendants having significant knowledge and experience of business affairs, including the acquisition of valuable properties and their rental for commercial purposes, and the obtaining of loans from various banks and financial institutions for those purposes. Each of the Defendants was heavily involved in that business in 2008 and, on the evidence, for some years beforehand. 104 The evidence reveals that the Defendants have utilised the services of a broker and a solicitor in the past for purposes connected with commercial borrowing and commercial leases as part of their investment activities. 105 Each of the Defendants signed documents on 20 June 2008, witnessed by the Leichhardt tenant, Mr Ryk, which provides significant difficulties for any specific claim for relief which they would seek to make under the Contracts Review Act 1980. 106 After the considerable time the Defendants have had whilst these proceedings have been on foot, and since they have been in possession of the Plaintiff's documentary case, the grievance appears to be that each of the Defendants did not understand that, if there was default in payment, the interest rate may be elevated from a rate of about 9% to a rate of about 11% per annum. There are undisputed clear defaults by each of the Defendants in making payments under the original interest rate, with warnings being given by the Plaintiff that an overdue rate would be charged if the defaults were not remedied. The Defendants failed to remedy the defaults. They did not make payments clearly owing under the interest rate applicable before the 2% additional rate was applied. 107 Accordingly, each of the Defendants was in clear and continuing default. The application of the additional 2% was the consequence of their default. 108 I note that no submission was advanced by the Defendants that the 2% overdue rate could be judged to be extravagant and unconscionable in amount, and out of all proportion, so as to attract an argument that it should be unenforceable as a penalty: Capital Securitisation Ltd v Jammal [2007] NSWSC 1073 at [97]. In reality, this was a limited additional charge only made after the Defendants had defaulted on the primary rate, and had been given a reasonable opportunity to remedy the default. As mentioned earlier, the contractual documentation had provided for an additional charge in the event of default, a condition which might be considered unremarkable in a business lending arrangement such as this. 109 At the hearing, Ms Wilkinson suggested that, if the matter proceeded further, the Defendants may, through the process of discovery or otherwise, seek to add other arguments or grounds for relief. In the circumstances in which these proceedings have developed before the Court, it seems to me that the time had come by 28 July 2010 for the Defendants to identify the real issues in dispute in the proceedings, which ought be reflected in the pleadings supported by direct evidence concerning areas which were said to attract the discretionary application of the Contracts Review Act 1980. Compliance with the obligations of the Defendants under s.56 Civil Procedure Act 2005 to facilitate the just, quick and cheap resolution of the real issues in dispute required no less. 110 Generalised references to the Contracts Review Act 1980 as contained in the Amended Defences do not serve the purpose of pleadings of informing the Court and the Plaintiff of the matters sought to be raised under the broad umbrella of that Act. 111 If the point had been reached in the hearing where the gateway to the Contracts Review Act 1980 was open to the Defendants, I would have been well satisfied that the Plaintiff was entitled to summary judgment in each of the proceedings having regard to the evidence before the Court and the opportunities which the Defendants have had since the commencement of these proceedings nearly one year ago. 112 Where experienced investors, with extensive borrowing experience with banks and other institutions, seek to invoke the Contracts Review Act 1980, the Court is entitled to expect that any pleading will be particularised and evidence will be provided to lay some sort of foundation for the claimed relief. 113 It seems entirely clear on the evidence that the Defendants had an opportunity to take legal advice. They had taken legal and broker advice in the past. They had the loan documents in June 2008 and a clear opportunity to absorb their contents as I infer they did. They certified that they had done so. The ability to apply an overdue interest rate was clear in the documents. After the Defendants defaulted in payments in accordance with the primary interest rate, an additional 2% was charged (after appropriate warnings). In the circumstances of this case, and given the business experience of the Defendants, I do not consider that the scenario advanced by the Defendants would assist them if the Contracts Review Act 1980 was available to them. 114 Accordingly, if this point had been reached, I would have determined that the Plaintiff was entitled to summary judgment against the Defendants in any event.

Conclusion 115 I am satisfied that the Plaintiff has made out a case for summary judgment in each of the proceedings and that orders ought be made in favour of the Plaintiff in accordance with paragraphs 1, 2 and 3 of the Notices of Motion filed in each proceedings on 2 June 2010. 116 In the Darlinghurst proceedings, I make the following orders:

(a) the Plaintiff be given possession of the land comprised in Certificate of Title Folio Identifier 11/SP63792 being the land situated at and known as Shop 30, 281-283 Bourke Street, Darlinghurst, New South Wales 2010 ("the Darlinghurst property");

(b) the Defendant pay to the Plaintiff the sum of $1,173,688.76, being the sum of $1,149,171.68 (calculated as at 25 May 2010) and interest at a daily rate of $355.32 from 26 May 2010 until 3 August 2010;

(c) a writ of possession for the Darlinghurst property is to issue forthwith. 117 In the Leichhardt proceedings, I make the following orders:

(a) the Plaintiff be given possession of the land comprised in Certificate of Title Folio Identifier 41/SP60919 being the land situated at and known as 41/19A-27 Norton Street, Leichhardt, New South Wales 2040 ("the Leichhardt property");

(b) the Defendants pay to the Plaintiff the sum of $611,852.09, being the sum of $598,940.12 (calculated as at 25 May 2010) and interest at a daily rate of $187.13 from 26 May 2010 until 3 August 2010;

(c) a writ of possession for the Leichhardt property is to issue forthwith. 118 I will hear the parties on costs.

04/08/2010 - Typographical error - Paragraph(s) 51

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