Perpetual Trustees Victoria v Monas [2010] NSWSC 1156

In this case the lender issued a s80 notice (under the UCCC) but the drafting was deficient in that it omitted the words “without further notice”. This is important because possession proceedings are prohibited unless there has been compliance with s80. The parties agreed to have the s80 question determined separately to avoid wasting time and money if they got to the end of the hearing and the Court determined the proceedings ought not to have been commenced. The judge pointed out that in Bank of Queensland Ltd v Dutta [2010] NSWSC 574 he himself had decided that failure to comply with s80 did not invalidate the proceedings. The barrister for the borrower argued that Dutta was wrongly decided and that if it was applied again he would simply appeal. The judge therefore refused to consider the s80 issue as a separate question noting that it would not save time and money.

There was also an application to seek relief under the hardship provisions of the National Consumer Credit Code. The issue was whether at what date the threshold (which is a floating threshold) should be applied in determining whether relief was available:

The threshold should be fixed at the date the contract was made, not the date when the hardship application is made. That way the parties know at the time the contract was formed whether or not a hardship application could be entertained.

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