CBA v Clune [2008] NSWSC 1125

In this case the CBA refinanced a loan and by oversight left the old loan account open. The borrowers drew down on that account and used the money to buy a property in Perth. The bank sought possession on the basis of a default under the mortgage and later amended to plead mistake. The borrower resisted on several grounds including a failure to serve a s80 Notice pursuant to the Consumer Credit Code.

The Borrower then sought separate determination of the s80 issue arguing that would dispose of the proceedings neatly without the need for a full blown trial on all the other pleaded grounds. The Court decided that the issues could not be neatly determined by a separate trial on that issue because of the complex issues (including that a s80 notice may not be needed at all if the mistake grounds were made out.

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