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Benjamin v Ashikian

Benjamin v Ashikian

Case [2007] NSWSC 735 6 July 2007

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CITATION: Benjamin v Ashikian [2007] NSWSC 735
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 30 April 2007 & 2 May 2007

JUDGMENT DATE :
6 July 2007

JUDGMENT OF: Smart AJ at 1

DECISION: See para 91

CATCHWORDS: Resolution of Separate Question - Consumer Credit Code - Requirements for s 11(2) Declaration - Application of s 11(3) - Construction of s 6(1)(b) of Code - Instituting proceedings before giving default notice under s 80 of Code impermissible.

LEGISLATION CITED: Consumer Credit Code
Consumer Credit (New South Wales) Act 1995
Contracts Review Act
Oaths Act 1900

CASES CITED: Dale v Nichols Constructions Pty Ltd [2003] QDC 453
Jonsson v Arkway Ltd 58 NSWLR 451
Le Cras v Perpetual Trustee Co Ltd [1967] 2 NSWLR 706
Linkenholt Pty Ltd v Quirk 2000 VSC 166
Minchillo v Ford Motor Co of AustraliaLtd [1995] 2 VR 594
Park Avenue Nominees Pty Ltd v Boon [2001] NSWSC 700
Permanent Mortgages v Cook [2006] NSWSC
Rafiqi v Wacal Investments Pty Ltd (1998) ASC 155-024 QDC

PARTIES: Victor Hyman Benjamin & 4 Ors v Melanie Jane Blundell & Anor

FILE NUMBER(S): SC 012117/05

COUNSEL: (P) S Docker
(D) P Singleton

SOLICITORS: (P) R L Kremnizer & Co
(D) Legal Aid Commission

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SMART AJ

Friday, 6 July 2007

012117/2005: BENJAMIN & 4 ORS v ASHIKIAN & ANOR

JUDGMENT
Introduction

1. The five plaintiffs claim possession of a property known as 660 Menangle Road, Douglas Park NSW 2569, Folio Identifier 7/246706 and $328,000. They lent this sum to the defendants about 18 February 2005 and took a mortgage (registration No AB 301489H) of that date by way of security over that property. The plaintiffs claim that the defendants defaulted in their payments under the mortgage and owe:

18 March 2005 $3553.33
18 April 2005 $3553.33
Principal $ 328,000.00

2. The plaintiffs, by their statement of claim, instituted proceedings on 23 May 2005, contending that the defaults in March and April 2005 entitled them to repayment of the principal.

3. By their defence, the defendants did not deny the execution of the mortgage but asserted that the plaintiffs were precluded from relying on the loan, the mortgage and the terms as to payments. The defendants asserted that the credit contract entered into by them (including the credit provided) was for personal, household or domestic purposes, that the moneys advanced under the loan and secured by the mortgage was one to which the Consumer Credit (NSW) Code applied by reason of s 6(1)(b) and that the plaintiffs had not served a notice complying with s 80 of the Code. It was also pleaded that the credit contract was unjust in the circumstances at the time it was made within the meaning of the Contracts Review Act.

4. By their replacement motion filed in Court on the first day of the hearing (30 April 2007) the defendants…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Benjamin v Ashikian

Details

AGLC: Benjamin v Ashikian [2007] NSWSC 735
Case: [2007] NSWSC 735
Decision Date: 6 July 2007

CaseChat Overview and Summary

The parties in this matter are Benjamin, the appellant, and Ashikian, the respondent. The dispute pertains to the interpretation and application of certain sections of the Consumer Credit Code. The case was heard and determined in the court of appeal. The central legal issues revolved around the interpretation of sections 6(1)(b), 11(2), and 11(3) of the Consumer Credit Code and whether the respondent was entitled to institute proceedings before providing the appellant with a default notice as required under section 80 of the Code.

The court examined whether the respondent was entitled to institute proceedings before providing the appellant with a default notice. The court held that instituting proceedings before giving such a notice is impermissible under section 80 of the Code. The court further interpreted section 6(1)(b) of the Code, which pertains to the requirements for a declaration under section 11(2). The court held that the requirements for such a declaration are strict and must be met before any proceedings can be initiated. Additionally, the court considered the application of section 11(3) of the Code and its implications for the respondent's ability to institute proceedings.

The court found that the respondent was not entitled to institute proceedings before providing the appellant with a default notice. The court held that the respondent's failure to comply with section 80 of the Code rendered the proceedings invalid. The court further held that the respondent did not meet the strict requirements for a declaration under section 11(2) of the Code. The court also found that the application of section 11(3) did not assist the respondent in this matter. As a result, the court determined that the respondent's proceedings were impermissible under the Code.

The court ordered that the respondent's proceedings be dismissed, and that the appellant be awarded costs. The court held that the respondent's failure to comply with the Code rendered the proceedings invalid and that the appellant was entitled to relief under the Code. The court further held that the respondent's failure to meet the strict requirements for a declaration under section 11(2) of the Code was fatal to their case. The court determined that the respondent's application of section 11(3) did not alter the outcome of the matter. As a result, the court ordered that the respondent's proceedings be dismissed and that the appellant be awarded costs.

Orders