Across Australia Finance v Bassenger [2008] NSWSC 799

In this matter the Lender sought orders for judicial sale and the third party mortgagor sought to resist on the basis of non-service of s57(2)(b) notice. The court held where judicial sale is sought a s57(2)(b) notice is not needed. The mortgagor who had difficulty with English also raised a Contracts review Act / unconscionability defence on the ground the onerous terms were not explained to her (she thought it was 7% per annum not 7% per month). The court disbelieved her noting that she had independent legal advice and negotiated certain aspects of the deal through her lawyer. A claim was also made to set aside consent judgement on the grounds that the existence of an arguable defence was not explained to the mortgagor – this was rejected because at the time of entering into the consent judgement the mortgagor was legally represented.

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