Permanent Custodians Ltd v McLanders

Unjust contract and agency principles 60The claim for possession and payment to the plaintiff is a claim that depends on the terms of the contract being the Loan Agreement. Apart from the issue relating to whether moneys were paid under the Loan Agreement to Ms McLanders or as she directed, the circumstances giving rise to a breach of the Loan Agreement are not in issue. If the Loan Agreement is binding on Ms McLanders, it has been breached, again assuming that the debt has arisen. 61Under the Loan Agreement, the loan moneys must be paid to the borrower or as she directs and the obligations on the borrower arise as a result of the payment of those loan moneys. Assuming that precondition is satisfied, there is no suggestion that the debt is not owed, other than the operation of s 7 of the Contracts Review Act 1980. Other legislative schemes were the subject of submission including unconscionability under both the general law and under the Australian Securities and Investments Commission Act 2001 (Cth) (hereinafter, "ASIC Act"). It is difficult to imagine that the conduct of Permanent Custodians, or the contract between Permanent Custodians and Ms McLanders could be unconscionable, either under the general law or under the ASIC Act and yet, at the same time, not be an unjust contract under the Contracts Review Act. As a consequence, I will concentrate on the claim under the Contracts Review Act. 62The operation and effect of the Contracts Review Act has been the subject of much authority and has been described by many judicial officers. While its operation may have been described many times, the number of descriptions does not detract from the fact that "sheeting home ... the consequences of ... unjustness may be a difficult evaluative exercise" (Provident Capital Limited v Papa [2013] NSWCA 36 at [7], per Allsop P, with whom Sackville AJA agreed). 63While in Provident Capital the borrowers had access to legal advice, the comments in relation to legal advice are apposite to any expert advice, and the provision of expert advice greatly enhances the ability of a borrower, as against the lender, to protect her interests: see Provident Capital, at [113]. If the advice received were inadequate (or fraudulent) that is not the fault of the lender: Provident Capital, at [7]; and see also Esanda Finance Corporation Limited v Tong (1997) 41 NSWLR 482 at 491, per Handley JA (with whom Santow and Simos AJJA agreed). 64In this case there is some question as to whether the Contracts Review Act applies to the Loan Agreement, but I leave that issue to later. In terms of dealing with the principles, it is appropriate to remind ourselves of the purpose described by McHugh JA in West v AGC (Advances) Limited (1986) 5 NSWLR 610 at 620-621, in which his Honour said: "It is in my opinion a mistake to think that a contract or one of its terms is only unjust when it is unconscionable, harsh or oppressive. Contracts which fall within any of those categories will be 'unjust'. But the latter expression is not limited to the so-called 'tautological trinity'. The Contracts Review Act 1980 is revolutionary legislation whose evident purpose is to overcome the common law's failure to provide a comprehensive doctrinal framework to deal with 'unjust' contracts." 65As otherwise described, notwithstanding the foregoing, the Contracts Review Act is not an anodyne - soothing every ill caused by contract. The jurisdiction of the Court under the Contracts Review Act is predicated on an evaluation, by the Court, that the contract was unjust: Nguyen v Taylor (1992) 27 NSWLR 48 at 71; Beneficial Finance Corporation v Karavas (1991) 23 NSWLR 256 at 260, 270; Elkofairi v Permanent Trustee Company Limited [2002] NSWCA 413. 66The Court of Appeal has made it clear, on a number of occasions, that a contract may be unjust in one of two ways: the contract, or the terms thereof, may be, in and of themselves, unjust; and/or, the circumstances that led to the making of the contract may make the contract itself unfair (within the statutory meaning). To recite another extract from West, supra, at p 620, where McHugh JA said: "Under s 7(1) a contract may be unjust in the circumstances existing when it was made because of the way it operates in relation to the claimant or because of the way in which it was made or both. Thus a contractual provision may be unjust simply because it imposes an unreasonable burden on the claimant when it was not reasonably necessary for the protection of the legitimate interests of the party seeking to enforce the provision. ... In other cases the contract may not be unjust per se but may be unjust because in the circumstances the claimant did not have the capacity or opportunity to make an informed or real choice as to whether he should enter into the contract." 67As the High Court has described it, albeit in a different context, when dealing with "unfairness" in an employment relationship: "The distinction between procedure and substance is elusive. This is so even in those fields of private international law, the statute law dealing with limitations of actions and the effect of repeal upon accrued rights, and the Statute of Frauds, where it has an entrenched operation. In our view, it is unhelpful and contrary to the tenor of the Award to introduce it into [this provision]." (Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410 at 465, per McHugh and Gummow JJ.) 68In a different industrial context, the "tautological trinity" (as McHugh JA described it in West, supra) of "unconscionable, harsh or oppressive" was defined in the following terms: "Those three words are used objectively in the clause and each of them is to be given its ordinary strong meaning. Plainly, their meanings overlap and definition is liable to adulterate the strength which the words possess. Nonetheless, it seems desirable that I indicate the meaning which I ascribe to them. To be oppressive, a condition, obligation or restriction must be burdensome, harsh and wrongful (see, for example, Scottish Co-Operative Wholesale Society v. Meyer (1959) A.C. 324 at p. 342; Re Germyn Street Turkish Baths Ltd. (1971) 3 All E.R. 184 at p.199; Allen v. Townsend [1977] FCA 10; (1977) 16 A.L.R. 301 at p. 337). To be unreasonable, it must be immoderate and inappropriate. To be unjust, it must be contrary to right and justice and to ordinary standards of fair play (see, for example, Re Kempthorne Prosser & Co's New Zealand Drug Co. Ltd. (1964) N.Z.L.R. 49)." (Re Municipal Officers' Association of Australia v Kenneth Lawrence Lancaster and Michael James Canny [1981] FCA 151; (1981) 54 FLR 129, per Deane J at 165.) 69It is, of course, inappropriate to apply definitions from one context to another without regard to the statutory context in which they are found. However the Contracts Review Act discloses no context which renders the above description of the terms "unconscionable" and "oppressive" (or "unjust") as inappropriate. I apply them. The terms of the contract must, either by their very nature or by the circumstances that gave rise to them, be contrary to the ordinary standards of fair play or burdensome, harsh or wrongful. 70It is appropriate at this stage to refer to the fact that the Contracts Review Act does not deal with unfair conduct, per se, it provides appropriate remedies in circumstances of an unfair contract. The conduct leading to the making of a contract is relevant only to the extent that it renders the contract between the parties unfair (as that term was discussed in West, supra, and as otherwise described above). It is unnecessary for there to be a pre-existing relationship or a supervening duty between the parties, the circumstances of the making of the contract (together with the terms of the contract) may, in and of itself, render the contract unjust. 71Next, it is appropriate that the Court note that s 9 of the Contracts Review Act requires the Court to consider the public interest and all of the circumstances of the case, including the consequences arising from compliance or non-compliance with the contract and any or all of its provisions. The Court is required to take into account those matters set out in s 9(2) of the Contracts Review Act. 72As to the question of public interest, it is sufficient to refer to the passage from the judgment of the Court of Appeal in Tonto Home Loans Australia Pty Ltd v Tavares; FirstMac Ltd v Di Benedetto; FirstMac Ltd v O'Donnell [2011] NSWCA 389 in which the Court (Allsop P, with whom Bathurst CJ and Campbell JA agreed) said: "[269] The public interest is the subject of particular reference in the CRA, s 9(1). One aspect of the public interest recognised early is keeping people to their freely entered bargains: Baltic Shipping Co v Dillon (1991) 22 NSWLR 1 at 9. By stating the importance of this aspect of the public interest shortly, I should not be thought to be consigning it as a matter of mere note only. It is fundamental, indeed it inheres in the CRA itself. It is an aspect of society that is of vital importance. As Story J said, writing extra-judicially ('Contract' (1832) 9 Encyclopaedia Americana 156), 'confidence in promises is ... essential to the existence of social intercourse among men ...'. Its strength as an operative legal norm that can be seen as fundamental is directly related to circumstances which give it strength - the just and free circumstances that give rise to the bargain. As Finn J said, writing extra-judicially in 'Unconscionable Conduct' (1994) 8(1) Journal of Contract Law 37 at 49, if parties are to be held to their bargains once made, the law should act with vigour to promote the conditions necessary to make the freedom of contract effective, free and just. [270] Another aspect of the public interest is the advancement of the protection, which the CRA manifestly intends to give, to those not able fully to protect themselves and to those preyed upon by dishonesty, trickery and other forms of predation. The Peden Report (J R Peden Harsh and Unconscionable Contracts: Report to the Minister for Consumer Affairs and Co-operative Societies and the Attorney-General for New South Wales, 1976) said that the reference to public interest 'would direct the courts' attention to the underlying purpose of the Bill, namely to prevent unjust dealings which offend against community standards of business morality': J R Peden The Law of Unjust Contracts (Butterworths, 1982) at 122. [271] ASIC sought to draw into the public interest contemplated by s 9(1) aspects of the aims, functions and powers of ASIC in performing its duties under the ASIC Act. By the ASIC Act, s 1(2)(a) in performing its functions and exercising its powers ASIC must strive, amongst other things, to promote and facilitate commercial certainty and efficiency of the economy; and by s 12A it has the function of promoting market integrity and consumer protection in relation to the Australian financial system. These concepts can be seen as relevant to the public interest, not because of the direct operation of the Commonwealth statute, but by their inherent appropriateness to the concept of public interest in respect of financial contracts and the operation of the financial market insofar as an individual contract is concerned. Procedures that promote suitable borrowings and operate as checks against fraud should be seen not only as matters for the lenders to comply with or not as they choose, but as indirect guards against conduct that can produce injustice to members of the public and thus undermine confidence in the free and fair operation of financial markets. That said, it is not part of the purpose of the CRA to promote an efficient banking system or to lay down rules for good banking practice: cf Cook v Permanent Mortgages Pty Ltd [2007] NSWCA 219 at [14]. Nevertheless, to the extent that the organisation of lending programmes, through sub-contracted intermediaries, has the capacity to generate risk of lending to duped, misled or inappropriate borrowers and such structures are administered without clear operational regard for the lending guidelines, it is in the public interest to administer the CRA to protect such people. Such protection will, in the public interest, encourage the recognition by lenders that the safeguards in such structures to avoid or minimise fraud or misleading conduct should be rigorously applied. For example, here, it was not good enough to be precise and perspicacious only about the taking of security and its value. Care must be taken not to misuse a statute, designed for the protection of individuals, by employing it to regulate the financial system. But when people are duped, misled, defrauded or taken advantage of by participants in the financial system by means that have been, in significant part, facilitated by inhering obvious risk and lax operation of appropriate safeguards, it conforms to the public interest to take into account such systemic and operational failure in order to assist to promote conditions that will make it more difficult for such conduct to exist, and thus encourage circumstances more conducive to free and just contracts." 73It is also appropriate for the Court, as presently constituted, to refer to two other passages in the judgment of Allsop P (as his Honour then was) in dealing with "carelessness" on the part of a person claiming relief under the Contracts Review Act. His Honour referred to the comment of McDougal J in Perpetual Trustees Victoria Ltd v Longobardi [2009] NSWSC 654, in which McDougall J took the approach to borrowers who sign documents in blank that: "such borrowers should bear the responsibility for fraud because they permitted it to happen. Judges are not obliged to follow other judge's findings of fact. One needs to understand all the facts in any case to form relevant views as to their importance." 74Nevertheless, in Tonto, supra, as to carelessness, Allsop P said: "[218] First, the appellants complained that the primary judge understated the conduct by his Honour by merely calling it 'careless'. It was said to be reckless, intentional and grossly misleading conduct, which had a direct consequence on the conduct of Tonto and the lenders. To the extent that reckless and grossly misleading seek to import a notion of intention or perception of the risk to others, the primary difficulty standing in the way of the submission is that senior counsel appearing for the appellants at first instance did not put this matter to the borrowers in cross-examination. That is not a criticism of his cross-examination. The conduct of the borrowers, in its carelessness, speaks for itself. As to whom they actually perceived might be misled by this depended, in significant part, upon who they thought the lenders were at the time they were doing things. The failure to press the borrowers with notions of intentionally misleading conduct and actual perception of risk of others puts it out of the hands of the appellants now to rely on such submissions. [219] There can be no doubt that the borrowers were careless and careless in a significant degree. But they were misled with blandishments and worse. They thought they were dealing with a substantial organisation, perhaps they should not have done so. They expected Streetwise to deal honestly with their applications and there is no evidence that they actually anticipated any fraud. It can be accepted that, as a matter of objective fact, they left the forms concerned in a misleading state. That they were aware that they were misleading people or may mislead lenders was not put to them. In any re-exercise of power, the cause or place of the plain carelessness of the borrowers is to be given significance, which conclusion will involve the capacity of the forms to mislead the lender should they be filled in incorrectly or falsely by Streetwise. However, given the way the matter was conducted, it is not to be found that the borrowers intentionally misled anyone or were conscious of the risk of doing so. ... [223] For present purposes the important question is whether or not the primary judge was correct (and this Court can apply a similar finding) that the fraud of Streetwise was not reasonably foreseeable by the respondents. This is not a tort case. It can be readily accepted, for the purpose of argument, that if one gives a signed document to a stranger (or someone of whom one has little knowledge) with blank sections to be filled in, which document is to be given to a third party for a business purpose, it is reasonably foreseeable that if the person is dishonest or careless the wrong information may be placed on the documents. That objective analysis is readily acceptable. The primary judge was engaged, however, in a more subtle exercise. He was assessing the people before him and characterising their conduct. All these borrowers trusted Streetwise. In particular with the benefit of hindsight, they should not have done so. Other people in the community may have been more cautious. His Honour found them to be careless. They were careless because they were giving open documents signed by them to commercial persons they had just met. The finding as to lack of reasonable foreseeability was based on the trust of ordinary people who had accepted the blandishments of rogues. That is how his Honour's findings should be understood; they were open and should not be disturbed." 75A major aspect of the judgment of the Court of Appeal in Tonto, supra, that is relevant to the proceedings before the Court, as presently constituted, is the analysis of agency for the purpose of loan arrangements. Accepting, without deciding, that the arrangements between Permanent Custodians and Horizon are similar to the arrangements between Tonto and Streetwise, it could, in those circumstances, not be said that Horizon was an agent of Permanent Custodians. However, for current proceedings, the issue is not particularly significant for reasons that will become obvious. 76Nevertheless, without reciting them, the principles applied by the Court of Appeal in Tonto, supra, are principles applied by me to the question of whether Horizon is an agent of Permanent Custodians.

Consideration of defendant's submissions 77I have already dealt with the factual contentions and findings of fact, reciting extensive excerpts from the transcript, relating to the attitude of Ms McLanders to her loan and what she understood she was seeking to effect. 78The defendant relies upon Ms McLanders' lack of sophistication in commercial matters. There is no suggestion that Ms McLanders did not sign the documents involved. There is also no suggestion to the contrary of Ms McLanders' evidence that the misleading aspects of the document she signed were filled in after her signature had been placed on the document. The overwhelming inference is that the blank spaces were completed by Mr Kumar and then lodged with Horizon. I so find. 79As already stated, Mr Kumar was Ms McLanders' agent. It is not only for that reason that Ms McLanders, as a matter of what is just and fair, should be bound by his conduct. As is made clear from the extracts of the transcript in which Ms McLanders described the arrangement that she sought to effect, the trust and reliance on Mr Kumar in completing the forms, and her understanding of the effect of leaving blank spaces in the documents (particularly her acceptance that she understood at the time that she was facilitating actions that may mislead Permanent Custodians), the direction to pay was a direction generally consistent with the arrangement that Ms McLanders was seeking to implement with Mr Kumar, namely, a loan of $75,000 from Permanent Custodians to be paid into an account from which Mr Kumar could on-lend for Ms McLanders to receive interest. 80The submissions of Ms McLanders rely heavily on the lack of procedure to ensure that a borrower is properly identified and understands the terms of the loan. Yet there is nothing in the terms of the loan that are said to be inconsistent with the understanding of Ms McLanders at the time that the arrangement was sought. Further, whatever be the shortcomings in the identification of borrowers, Permanent Custodians, either themselves or through Horizon, sighted a number of identifying documents, including the passport and drivers' licence, already described. More importantly, there was no mistake in the identification of the borrower. If there were difficulties or loopholes in the process adopted by Permanent Custodians and/or Horizon they are not loopholes that were causative of any damage or unjustness. 81It cannot be said of any of the terms of the Loan Agreement that they are burdensome, harsh or wrongful. No complaint is made as to the level of the interest rates. No complaint is made that the charges are penalties rather than proper recompense for the moneys that were borrowed and/or the protection of the lender. 82Neither the terms of the contract nor the processes involved in entering into the Loan Agreement can be described, in ordinary parlance, as burdensome, harsh or wrongful. None of these processes are contrary to the ordinary standards of fair play. 83I take into account that there needs to be certainty in commercial dealings and that persons who knowingly sign documents, understanding the nature of the document being signed, ought to be responsible for the arrangement into which they understand they are entering. In that sense, people are, and need to be, responsible for the debts that they knowingly incur and should be kept to bargains, which are freely entered. 84At the same time the Contracts Review Act, and the other statutory provisions, are protections which society, through the legislature, considers important in the proper regulation of relationships, commercial and otherwise. If the conduct of Permanent Custodians (or Horizon) were such as to offend business morality, then it would be more important to ensure that those duped or misled are protected from such immorality. Likewise, it is important that there be appropriate protection to ensure that inappropriate borrowers are not induced to incur debts beyond their means or beyond their ability to repay. 85Nevertheless, in this case, neither Permanent Custodians nor Horizon have facilitated an obvious risk or fraud. Nor have they involved themselves in the lax operation of appropriate safeguards. They have not induced, duped or misled Ms McLanders. 86If there be recklessness, it has not been conduct of Permanent Custodians or Horizon that has been reckless. To the extent that recklessness involves a knowing intention or perception of risk in the conduct in which a person is engaged, it is Ms McLanders who has been reckless, on her own testimony. Permanent Custodians has dealt honestly with the application before it (as did Horizon). Neither has taken advantage of a known or foreseeable disadvantage, special or otherwise, suffered by the borrower. 87As stated, nothing was achieved by the Loan Agreement that Ms McLanders did not desire. Ms McLanders trusted Mr Kumar and it was her conduct that facilitated the fraud or increased the risk of fraud. Neither Permanent Custodians nor Horizon facilitated the fraud or increased its risk and they, as a matter of fairness, ought not be held liable. 88The first aspect that is, therefore, necessary to recite, by way of the submissions of the defendant, is the issue relating to the relationship between Permanent Custodians, AMS, AFIG and Mr Kumar. The Court has already made findings that the evidence does not support a proposition that Mr Kumar was an agent of Horizon, nor, in turn, Permanent Custodians. In some senses, the relationship between Permanent Custodians, AMS and AFIG is somewhat irrelevant. I will treat Permanent Custodians, AMS and AFIG as if they were one and the same. 89Ms McLanders' submission that Permanent Custodians were able to establish a network of brokers who would meet with potential borrowers and seek to source loan applications for submission to AFIG without having to incur the capital cost otherwise involved in establishing its own network is accurate. It is also accurate to suggest that the arrangement effectively outsourced "the whole of the retail operation involved in the procurement of loan applications". 90As already stated, I do not accept that Mr Kumar worked for or was associated with Horizon. Even if he were "associated with Horizon" it would be impossible, on the evidence before the Court, to determine that he was associated with Horizon other than peripherally or in a manner that rendered his conduct independent of Horizon. 91The submission as to the difficulties with the conduct of Horizon and/or Permanent Custodians has merit. There was no direct meeting with Ms McLanders by any person associated with either Horizon or Permanent Custodians (unless one were to conclude that Mr Kumar was associated with Horizon). Further, there was no independent investigation of the disclosed earnings of Ms McLanders. 92Nevertheless, the material presented to Horizon and upon which it and Permanent Custodians relied included material identifying Ms McLanders and her signature (which accorded with the signature on the documents), two pay advices, which corroborated the false material relating to earnings, and a letter attesting to the employment by a person who, on the face of the document, was independent of Ms McLanders. 93Further, the completion material was sent directly to Ms McLanders at her home address. Ms McLanders made no complaint as to the arrangements described therein. Nor would one expect her to have a complaint. The evidence recited above makes clear that Ms McLanders trusted Mr Kumar implicitly. 94It was Ms McLanders' intention to borrow $75,000. This intention was effected. It was Ms McLanders' intention to have Mr Kumar on-lend that money to third parties and obtain the income associated with that subsequent loan arrangement. This may also have occurred. The moneys were paid into account and, at least in part, paid some of the liability to Permanent Custodians. 95The unjustness associated with the arrangement relates to the arrangement between Ms McLanders and Mr Kumar in the subsequent lending to third parties or Mr Kumar's use otherwise of the moneys made available to him. The arrangement between Ms McLanders and Permanent Custodians effected precisely that which Ms McLanders wanted. The provision of the material in those applications that was misleading or deceptive was facilitated by Ms McLanders. Further, the misleading conduct was executed for the purpose of achieving that which Ms McLanders desired as an outcome in the arrangement between her and Permanent Custodians. 96While I accept, as submitted by Ms McLanders, that the evidence discloses Ms McLanders had no direct recollection of the transaction involving the request for completion to the account DLM Renovations, this transaction was disclosed in the letter from Paul C Fabian & Co to Ms McLanders, dated on the day of the transaction (Exhibit A, Volume 2, page 236). 97No attempt has been made to suggest that, if Ms McLanders were unhappy with that arrangement, the transaction could not have been reversed at the time Ms McLanders first saw the letter from Paul C Fabian & Co. 98It may be true, as submitted by Ms McLanders, that Mr Kumar did not "invest" the money on behalf of Ms McLanders. But that is not the result of any conduct of Permanent Custodians (or Horizon) or the result of the terms of the Loan Agreement. 99Much attention was paid to the relationship between Permanent Custodians and Horizon. I do not accept that an analysis of the documents renders Horizon an agent of Permanent Custodians. I apply to the documentation the same principles as were applied by the Court of Appeal in Tonto, supra. 100Even accepting the analysis of the documentation submitted by Ms McLanders, I do not accept that for relevant purposes, Horizon had authority to bind AFIG, AMS or Permanent Custodians in a manner, which rendered it an agent of Permanent Custodians. 101As to the submission that no debt is owed, that submission depends upon the proposition that there was no direction given by Ms McLanders to complete the loan in the manner effected. I reject that submission. There is a direction, signed by Ms McLanders, to complete the loan precisely in the manner it was completed. Further, even if the terms of the disbursements were added after Ms McLanders' signed the document, on the evidence before the Court, Mr Kumar inserted them. 102Mr Kumar was the agent of Ms McLanders. The improper or inappropriate conduct of Mr Kumar cannot be sheeted home to Permanent Custodians. Moreover, given the notice that was sent, on completion or immediately after the completion was effected, to Ms McLanders as to the manner in which the moneys were disbursed, nice questions arise as to whether Ms McLanders would be estopped from now asserting that the completion was not in accordance with her wishes. 103In any event, Ms McLanders does not so assert. Her oral testimony gives rise to the inference, which I draw, that a completion in accordance with Mr Kumar's writing was generally a completion that she supported. The completion direction was in accordance with the then wishes of Ms McLanders. The submission is an ex post facto justification to overcome the unjustness of subsequent dealings between Ms McLanders and Mr Kumar. 104As a consequence of the finding of fact that Ms McLanders signed the document and the document was in accordance with that which Ms McLanders then desired, i.e. to provide the money to Mr Kumar for his reinvestment and to trust him to look after her interest, the money has been paid in a manner consistent with Ms McLanders' direction and not in a manner that gives rise to any unjustness. 105Even though the most relevant of the issues in s 9(2) of the Contracts Review Act have already been dealt with in the reasons, it is necessary, given the terms of the subsection, to state that I have had regard to each of the matters set out in s 9(2) of the Contracts Review Act. I will briefly deal with each of them in turn. 106There is a material inequality in bargaining power between Permanent Custodians, on the one hand, and Ms McLanders on the other. That inequality did not affect the bargain struck. 107The terms of the contract are, as stated, not unfair or unjust, but the contract was not the subject of negotiation. Nor was it reasonably practicable for Ms McLanders to negotiate for the alteration of or to reject any of the provisions of the Loan Agreement. Nevertheless, I do not consider either of those criteria to give rise to an unjustness, given that no aspect of the Loan Agreement is unjust. 108As at least implicitly stated already, no aspect or provision of the contract imposes conditions on Ms McLanders which are unreasonably difficult to comply with or not reasonably necessary for the protection of legitimate interests of Permanent Custodians. Likewise the criterion prescribed by s 9(2)(e) is not a relevant consideration in the circumstances of the conduct leading up to the making of this contract or the terms of the contract itself. 109The relative economic circumstances, educational background and literacy of Ms McLanders, relative to Permanent Custodians (if that be allowed given the exception to corporations in s 9(2)(f)(i) of the Contracts Review Act) is manifest and, were the terms of the contract different or oppressive, even marginally, would have put Ms McLanders at a disadvantage. However, no complaint is made about the terms of the Loan Agreement as between Ms McLanders and Permanent Custodians. As already stated, not even the interest rates are the subject of complaint. Likewise, whatever be the form of the contract, Ms McLanders understood the conditions of the contract, the necessity to repay the loan and understood the consequences of non-repayment. Ms McLanders, as already stated, understood the arrangement with Permanent Custodians. Ms McLanders misunderstood the trustworthiness of Mr Kumar. 110The latter comment brings me to the criteria in s 9(2)(f)(i) and, to a lesser extent, s 9(2)(h) of the Contracts Review Act. Ms McLanders understood the provisions of the contract and their effect and she is the party seeking relief under the Contracts Review Act. Further, the knowledge and understanding of Ms McLanders cannot be separated from the knowledge and understanding of Mr Kumar in evaluating a number of these aspects. Ms McLanders received independent expert advice. Unfortunately for her, that expert advice was given by a person who proved to be untrustworthy. But the advice was from a person purporting to act in her interests and not purporting to act in the interests of Permanent Custodians or any of the other actors in the formation of the contract. 111I have already remarked that there was no undue influence, unfair pressure or unfair tactics exerted on Ms McLanders by any other party to the contract, by Horizon or any person acting for Horizon in any relevant sense. As earlier stated, I have taken into account each and every one of the criteria in s 9(2) including the similarity of other contracts that I infer were executed by Permanent Custodians and the commercial setting of the contract. For the reasons already given, I do not consider that the contract, or the circumstances leading to its formation, were unjust, except as between Ms McLanders and Mr Kumar, who in every relevant sense, was quite separate from Permanent Custodians and Horizon. 112For the foregoing reasons, the claim under the Contracts Review Act must fail. The claim under the general law and other statutory protections of like effect, raised by Ms McLanders, also fails. Further, there is money owing under the Loan Agreement which is payable. 113The Court has great sympathy for the predicament in which Ms McLanders is now placed. Nevertheless, the unjustness perpetrated has not been perpetrated by Permanent Custodians. It is a result of a somewhat naïve trust in a person whose conduct should have given rise to serious misgivings. 114Whatever be the shortcomings in terms of investigation, Permanent Custodians (and Horizon) had documents signed by Ms McLanders, in original; documents confirming and corroborating both her signature and her identity; and seemingly independent documents confirming her employment and wage. 115Permanent Custodians are entitled to possession and to payment of the debt. To the extent it is of any use, Ms McLanders is entitled to relief from Mr Kumar on the cross-claim and otherwise the cross-claims shall be dismissed. 116I direct the plaintiff to provide a Short Minute of Order reflecting these reasons for judgment, including judgment for the plaintiff on the statement of claim, judgment for the cross-claimant, Ms McLanders, against the cross-defendant, Mr Kumar, and judgment for the cross-defendant, Permanent Custodians Ltd, in the second cross-claim by Ms McLanders.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 May 2013