Permanent Custodians v Upston [2006] NSWSC 1128

The lender is claiming summary judgement for a debt owing under a loan agreement secured by a registered mortgage over the borrowers home. The borrower is seeking to stay these proceedings until a hardship application is heard and also to transfer the matter to the Tribunal. The borrowers defence relies on s80(2) of the Consumer Credit Code which requires a notice of the default be served and 30 days given to the borrower to pay any outstanding amount before proceedings can be commenced. The lender did send notice to her home address, however, the borrower argued that she does not check her mailbox and never gave that address as an address for correspondence to the lender. The court agreed that the date for service may be the date the notice was actually received (which was considerably later than the date it was delivered). The court also agreed there is a case to be determined regarding the hardship claim but thought the court could deal adequately with this issue. Therefore the lender was not granted summary judgement but instead the matter was listed for a quick hearing to determine the issues.

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