CITATION: First Option Credit Union v Williams [2005] NSWSC 855
HEARING DATE(S): 24 August 2005
JUDGMENT DATE :
30 August 2005JURISDICTION: Common Law Division
JUDGMENT OF: Associate Justice Harrison
DECISION: (1) Paragraph (2) of the defendant's notice of motion filed 4 August 2005 is dismissed; (2) The defendant is to pay the costs of the notice of motion and the costs thrown away by the amendment to the defence.
CATCHWORDS: Dismiss proceedings - s 80 Consumer Credit Code
LEGISLATION CITED: Consumer Credit Code - ss 80 & 85
Credit Act 1984 - s 107
Uniform Civil Procedure Rules 2005 - r 13.4; r 14.28(1)CASES CITED: Equuscorp Pty Ltd v Rigert & Anor [2003] VSC 343
Equuscorp Pty Ltd v Olsen [2004] VSC 454PARTIES: First Option Credit Union ACN 087 650 735 formerly Tab Credit Union Limited ABN 95 087 650 735
(Plaintiff)Elvie Joan Williams
(Defendant)FILE NUMBER(S): SC 11434/2005
COUNSEL: Ms E Cohen
(Plaintiff)Ms M Sneddon
(Defendant)SOLICITORS: Mr N J O'Connor,
Neil J O'Connor & Associates
(Plaintiff)Ms M Olsen
Grey & Perkins
(Defendant)
LOWER COURT JURISDICTION:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONASSOCIATE JUSTICE HARRISON
11434/2005 - FIRST OPTION CREDIT UNIONTUESDAY, 30 AUGUST 2005
JUDGMENT (Dismiss proceedings –
ACN 087 650 735 formerly
TAB CREDIT UNION LIMITED
ABN 95 087 650 735 v
ELVIE JOAN WILLIAMS
s 80 Consumer Credit Code)
1 HER HONOUR: By notice of motion filed 4 August 2005 the defendant seeks firstly, and order granting leave to file and serve an amended defence; secondly, an order that the proceedings be dismissed pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 (UCPR); thirdly, an order that the plaintiff pay the defendant’s costs of and incidental to this motion on an indemnity basis; and fourthly, an order that the plaintiff pay the defendant’s costs of the proceedings. The plaintiff, First Option Credit Union formerly Tab Credit Union Limited, relied on three affidavits of Dennis Andrew Rutherford sworn 1 June 2005, 11 July 2005, 9 August 2005 and Jill Curry sworn 23 August 2005. The defendant, Elvie Joan Williams, relied on her affidavit sworn 4 August 2005.
2 The brief facts are that on 13 May 204 the plaintiff agreed to increase an existing loan facility to the defendant to the amount of $605,213.00. Under the loan agreement the defendant is the borrower, mortgagor and guarantor. The defendant’s husband and son are co-borrowers but not mortgagors. The loan is secured by mortgage registered dealing number 8586758 over the defendant’s property at 254 Pennant Hills Road, Carlingford. The property is an investment property and is currently tenanted (see para 4 of defendant’s aff).
3 In late January 2005 the plaintiff served a statement of claim and a notice for possession on the defendant’s tenant. Those proceedings, 10331/2005 did not allege service of a Notice pursuant to s 80 of the Consumer Credit Code (the Code). The plaintiff has not taken any further steps in those…
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- First Option Credit Union v Williams [2005] NSWSC 855
- Case
- [2005] NSWSC 855
- Decision Date
CaseChat Overview and Summary
The primary issue for the court was whether the Credit Union had the right to dismiss Williams' proceedings under the stated section of the Code. The court had to assess whether the statutory provisions permitted such dismissal, considering Williams' claims and the procedural context in which they were brought. Additionally, the court needed to examine whether any of the statutory exceptions to dismissal applied to Williams' case.
The court found that the statutory provisions did not permit the dismissal of Williams' proceedings as sought by the Credit Union. It determined that the specific provisions of the Consumer Credit Code did not support the Credit Union's application to dismiss. The court further held that none of the statutory exceptions to dismissal were applicable in this instance. As a result, the Credit Union's application to dismiss the proceedings was denied.
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