Perpetual Trustees Victoria v Monas [2011] NSWSC 57

The lender sought possession. The borrower resisted on the grounds the s80 notice did not comply with the Code. In particular, the notice failed to use the words “without further notice” in specifying that proceedings could be commenced without another notice being served. 

The Judge noted:

It is prudent to use the exact words of the section, but a failure to do so is not determinative of whether a default notice complies with its requirements.

His Honour then held the proceedings had been validly commenced because:

Nowhere in the notice was there any suggestion that further time would be allowed or that further notice would be given. On the contrary, the fact that the default notice was issued reinforced that enforcement action was imminent following the expiration of the grace period.

To make his decision watertight the Judge then decided for the lender on a separate ground. He held that, even if the notice was invalid, he had the power to grant leave for the proceedings to be commenced (retrospectively) without a proper notice. He then proceeded to give leave. Also see our case note on Bank of Queensland v Dutta [2010] NSWSC 574. As there was no other defence filed he then granted possession to the lender.

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