NAB v Voukidis [2015] NSWSC 185

The bank sought possession. The wife initially sought to argue unjustness under the Contracts Review Act and unconscionability. These claims were abandoned and the bank was granted possession.

The bank then sought monetary judgement so it could pursue the borrowers for any shortfall. In response, the wife then sought to reinstate her previous defences and add a defence based upon alleged breaches of the Code of Banking Practice. 

The court found no satisfactory reason for the late changes and found that the lender’s change to add a claim for debt in addition to possession did not account for the new claims or the wife’s request to withdraw previous admissions. The court refused to permit the wife to rely upon these defences to the claim for debt given they were not relied upon as defences to the earlier summary judgment claims, noting the potential for inconsistent judgments. 

The court noted that breach of the Banking Code is not a defence, and in any event was not properly pleaded.

The court also struck out her claim based upon a sale at undervalue pursuant to section 420A of the Corporations Act because that section does not give any rights to a guarantor. It simply re-defines the duty of a mortgagee where the mortgagor is a company and provides for a duty to take all reasonable care to sell at not less than market value or the best price reasonably obtainable.

In any event, the court found that the terms of the guarantee were clear and required the guarantor to pay her full liability before bringing any cross-claim. The court also noted two other reasons for striking out the claim, namely that the acts of the receivers giving rise to the breach had not been pleaded and no evidence had been served as to the alleged market value.  

Click here to read the full judgment.

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