Avery v Saree Holdings Ltd; Lava Ltd v Avery

Ms Avery, the mortgagor, brought proceedings against Lava and Saree, the first and second mortgagees of Torrens title land, respectively. Ms Avery sought to set aside a judgment for possession entered by Lava in March 2009 and also sought declaratory relief against Saree. The court was required to decide whether the judgment for possession should be set aside due to the non-service of a Consumer Credit Code, section 80 notice prior to the commencement of proceedings, and whether there was sufficient cause to set aside the judgment under the UCPR rule 36.15. Additionally, the court needed to determine whether the Consumer Credit Code applied to Lava's loan agreement with Ms Avery and whether the second mortgage registered with Saree was part of an illegal scheme.

The court found no irregularity in the entry of the judgment for possession, as the non-service of the Consumer Credit Code, section 80 notice did not constitute an irregularity. Furthermore, Ms Avery did not demonstrate sufficient cause to set aside the judgment. Regarding the applicability of the Consumer Credit Code, the court held that it applied to Lava's loan agreement with Ms Avery, classifying it as a regulated credit contract. Finally, the court ruled that the side agreement between Ms Avery and Saree was not part of an illegal scheme and directed that accounts be taken.