Bank of Queensland v Burgess[2011] NSWSC 154

The borrower defended a claim for possession on the basis he had been granted relief under the Consumer Credit Code due to ill health and unemployment. The lender sought to strike out the defence and have judgment entered. The borrower filed a motion seeking to strike out the statement of claim. The motions were heard together.

The borrower claimed that the statement of claim was invalid because the defaults claimed occurred after the date of the notice under s80 Consumer Credit Code. Justice McCallum rejected this argument because the statement of claim followed the precedent contained in the possession list practice note.

However the Court did find that there was a serious question to be tried as to whether the borrower had been granted relief due to hardship. Therefore there was a question as to whether or not the loan was in default. Accordingly, the defence was not struck out.

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