National Credit Code

CBA v Kilpatrick [2013] NSWSC 169

The borrower claimed default judgment was obtained illegally because there had been a failure to serve the s 88 notice under the National Credit Code. However the judge noted that strict compliance with such notice requirements is not necessary as long as the borrower gets the gist: There is a whole series of authorities to …

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Karamihos v Bendigo and Adelaide Bank Limited [2013] NSWSC 172

This case involved elderly couple with limited English who had always been very highly geared and had a history of numerous loan refinancings. The refinancing of their existing home loan was approved upon the basis of their exit strategy, namely the sale of their commercial property, valued optimistically by the husband at $2m. It was …

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Nibar v Wallace [2012] NSWSC 1301

The guarantor raised the following defences: National Credit Code The guarantor claimed the code applied and that a notice under section 80 of the code ought to have been served before commencing enforcement proceedings. The judge was sceptical of the claim that the code applied because although the security was the guarantor’s home and the …

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Westpac Banking Corporation v Chadha [2012] SASC 178

The borrowers argued that the bank granted the loans in violation of the National Credit Code and principles of unconscionable equity. They claimed that the bank knew or ought to have known that they were not in a position to repay the loans. The borrowers assert that they live in their property with a daughter …

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BankWest v Wong [2012] SASC 124

The bank sought possession of property, which secured the obligations of the guarantor of a company borrower’s debt. The guarantor raised the following defences: that the notice of demand was ineffective because it was dated a year earlier, as was the subsequent statutory notice which referred to the earlier notice by the date it should …

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Ozzy Loans v New Concept & Zhong [2012] NSWSC 814

A borrower and guarantor (a director of the borrower) took out a loan at the behest of a fraudster, pursuant to an agreement whereby the fraudster promised to indemnify the borrower and guarantor against his failure to repay the loan. The fraudster was not a party to the loan or guarantee and failed to repay …

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Leppa v ANZ [2012] SASC 81

At the hearing on that day, the borrower informed the Master that he had lodged a complaint with the Financial Ombudsman. Acting on that assertion, the judge adjourned the hearing so as to allow the Financial Ombudsman to address the dispute. However, ANZ filed an affidavit which recorded communications between its lawyers, on the one …

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Westpac v Tesoro [2012] VSC 182

The lender applied for summary judgment against the borrower, seeking possession and a sum of money. The loan and mortgage were Code regulated. The borrower argued that the default notice failed to comply with the Code. The borrower also sought to vary the terms of the loan and mortgage pursuant to section 74 of the …

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CBA v Wales [2012] NSWSC 407

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 …

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