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 defaulted on his two mortgages following his accident and sought orders under section 74 of the National Credit Code for the arrears on both his mortgages to be capitalised on the grounds of hardship. Section 74 of the National Credit Code provides that a debtor unable because of illness, unemployment or other reasonable …
Mrs Knowles sought $1.05 million to refinance her property which had on it: a residence (in which the plaintiff and her family reside); two factories; a cool-store transport refrigeration warehouse building; and land leased to a primary producer. The property was subject to four leases from which she received rental. The case involved a dispute …
Knowles v Victorian Mortgage Investments [2011] VSC 611 Read More »
This case concerns an appeal from a judgment of the Supreme Court (see Citigroup v Azar [2011] NSWSC 95) which granted the lender judgment for possession. The facts were that parents borrowed funds to refinance their existing mortgage and to give money to their son. The parents claimed that they were elderly, on a pension …
A guarantor tried to raise two fresh defences on the morning of his hearing on the basis the guarantee was unenforceable for noncompliance with section 50 of the Consumer Credit Code and section 20 of the Consumer Credit Regulation and the loan guaranteed was not validly executed. The court held that the Code did not …
Bank of Western Australia Ltd v Tumuluri [2011] NSWSC 832 Read More »
A lender sought to enforce a judgment debt against other property owned by the borrower on the basis of a clause in the second mortgage which provided that the mortgagee shall be entitled by way of further security to lodge a caveat over any other real property of the borrower until the principal sum and …
The broker was a school friend of the borrower. They had not seen each other for 20 years but rekindled their friendship a year before the loan. The borrower was a truck driver prior to which he had worked in his father’s sand and cement business. The broker told the borrower he needed money for …
The borrower defended a claim for possession on the basis he had been granted relief under the Consumer Credit Code due to ill health and unemployment. The lender sought to strike out the defence and have judgment entered. The borrower filed a motion seeking to strike out the statement of claim. The motions were heard …
