The lender obtained judgment for possession against a borrower and days before the eviction, the borrower negotiated an agreement to stay the eviction. The agreement contained a term that if the borrower defaulted in any payment, the lender would enforce the judgment and warrant without notice. The borrower defaulted because the direct debit form was …
The borrowers filed a defence that was entirely blank save for their names. The court found the defence did not comply with court rules because it contained no pleadings or particulars and was fatally flawed. It should have been refused by the registry staff but given it was not, the court found that it was …
Bendigo and Adelaide Bank v Chowdhury [2012] NSWSC 59 Read More »
This Court of Appeal decision concerned the validity of a s57(2)(b) notice. Misstatement of the principal amount The borrower argued that the notice was invalid because it misstated the amount of the principal. The lead case on this question is the High Court decision in Bunbury Foods Pty Ltd v National Bank of Australasia Ltd …
The lender sought possession and the borrowers did not file a defence. The lender was granted judgment in default of defence. The borrowers appealed on the basis that there was no default on their loan. The court held their defence misconceived because the borrowers were clearly in default. The whole of the loan was then …
Bank of Western Australia v Radovanovic [2012] WASC 162 Read More »
The borrower sought to set aside default judgment. The defence she wished to raise was that the loan agreement had not been signed by the lender and that, accordingly, there was no contract. The Court of Appeal was scathing: It is indisputable that the applicant signed the loan document which reads as an offer to …
De van der Schueren v Perpetual Trustee [2012] VSCA 86 Read More »
The lender obtained default judgment against a borrower arising out of a home loan secured by a mortgage. The borrower sought to have the default judgment set aside. The borrower defaulted as a result of losing her job and contacted the Financial Ombudsman Service (FOS) for assistance with financial hardship. After receiving an email from …
The borrower wanted to make a hardship application under the National Credit Code and to that end sought to set aside the default judgement on two grounds: Firstly she argued the banks affidavit in support of default judgement was inaccurate. The affidavit stated (falsely) that no payments had been made since the time of commencement …
The borrower fell into arrears and the bank issued a default notice. After a conversation with the bank’s lawyers, the borrower paid an amount indicated on the default notice but this amount did not include the bank’s costs. After the borrower was served with a statement of claim for failing to pay these costs and …
The lender obtained default judgment against a borrower arising out of a home loan secured by a mortgage. The borrower sought to have the default judgment set aside. The borrower defaulted as a result of losing her job and contacted the Financial Ombudsman Service (FOS) for assistance with financial hardship. After receiving an email from …
A mortgagor owner of a house entered into an agreement with a purchaser to buy a house in two instalments over three years, with the purchaser permitted to occupy immediately. The mortgagee obtained default judgment for possession of the land and the occupier sought to have that set aside and be joined as second defendant. …
