National Credit Code

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 …

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Australian Regional Credit v Rukavina [2010] NSWSC 1466

The borrower sought to stay of eviction in order to obtain advice as to setting aside judgment granted in 2002. The borrower had a rather complex history of business dealings and borrowings. He had two companies which had been liquidated for failure to repay loans he had guaranteed. However, the borrower sought to argue that …

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Banksia Mortgages v Croker [2010] NSWSC 1447

The borrowers were graziers who resisted possession on the basis of the Contracts Review Act and  the Consumer Credit Code. They had sought to refinance a loan over their home through a broker. The broker convinced them to over borrow to invest in a venture in which he was involved for a return of 30% …

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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 …

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CKM (Mortgages) v Burtenshaw [2010] NSWSC 1044

The borrower brought an application to set aside default judgment. The proposed defence was a failure to serve a s80 Notice under the Consumer Credit Code and unjustness under the Contract’s Review Act. On the Credit Code issue, decisions of the Associate Judges in 2006 and 2007 were rejected and two 2010 decisions of full judges …

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Smit v Carney [2010] NSWSC 910

Mrs Smit was born in 1935. Her son began living with her after his marriage failed. In February 2009, her son claimed he wished to finance a rock concert but she refused to mortgage her property for the purpose of raising those funds. The son resolved to forge a mortgage. The mortgage he entered had …

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Bank of Queensland v Dutta [2010] NSWSC 574

The borrowers raised three defence to the lender’s claim for possession: failure to serve a s80 Notice; unjustness pursuant to the Contract Review Act and Consumer Credit Code; that the mortgage memorandum did not secure the loan. Was the loan code – regulated? The Bank obtained 2 signed Business Purpose Declarations however, as the Bank …

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Van den Heuvel v Perpetual Trustees Victoria; Registrar General of NSW v Van den Heuvel [2010] NSWCA 171

In proceedings for possession of land brought by the lender, the wife whose husband had forged her signature on a mortgage over the family home argued that the mortgage was an “unjust credit contract” under the Consumer Credit Code (“the Code”) and ought to be set aside. The Judge at the first instance hearing found …

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Fast Funds v Coppola [2010] NSWSC 470

In this case an elderly non-English speaking couple took out high interest loans so their daughter could pay her violent and abusive boyfriend and his associates $385,000. The judge was deeply moved by this commenting: The intimidation involved incidents of intensely ugly forms of humiliation. Most forms of objective language are ill equipped to convey …

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Singh v Ginelle [2010] NSWSC 442

This was an application to injunct the power of sale, to grant leave to sue the lender’s solicitor and barrister and to set aside a consent judgement order. The trouble began when the borrowers defaulted under their mortgage and the lender commenced proceedings for possession were instituted. A Defence was filed which alleged that the …

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