Benjamin v Ashikian [2007] NSWSC 735

The mortgage purported to be for business & investment purposes. The lender sought to rely on a declaration as to business purposes under s11(2) of the Consumer Credit Code. However it was faulty and held not to comply. The Court then examined the lender’s understanding of the transaction. After noting that the lender knew the loan was a refinance of a defaulting loan and the property was residential it was held the lender knew the loan was not for business or investment purposes. The result was that the proceedings were struck out and the lender told that he would have to issue a s80 notice and wait 30 days before recommencing proceedings for possession.

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