Hraiki v Beljon - [2008] NSWSC 775

CITATION: George Hraiki v Jean Dorothy Beljon [2008] NSWSC 775

HEARING DATE(S): 9 July 2008

JUDGMENT OF: McDougall J at 1

EX TEMPORE JUDGMENT DATE: 9 July 2008

DECISION: See paras [46] to [49] of the judgment.

CATCHWORDS: CONSUMER CREDIT – application to restrain mortgage sale – whether Consumer Credit Code applies – whether certificate that does not identify credit provider is valid for purposes of s11 – whether certificate given after credit contract made – payment in Court – delay.

LEGISLATION CITED: Consumer Credit Code 1995
Consumer Credit (Queensland) Act 1995
Consumer Credit (New South Wales) Act 1995
Real Property Act 1900
Contracts Review Act 1980
Consumer Credit Regulation 1995

CASES CITED: Beneficial Finance Corporation Ltd v Karavas (1991) 23 NSWLR 256
Harvey v McWatters (1948) 49 SR (NSW) 173
Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161

PARTIES: George Hraiki (First Plaintiff)
Colleen Hraiki (Second Plaintiff)
Jean Dorothy Beljon (First Defendant)
Megan Taubman (Second Defendant)
Wendy Barnett (Third Defendant)
Maurice Lilienthal (Fourth Defendant)

FILE NUMBER(S): SC 3584/08

COUNSEL: A G Rogers (Plaintiffs)
A L Hill (Defendants)

SOLICITORS: Elias Gates & Associates (Plaintiffs)
Mackellar Crain & Barnett (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

McDOUGALL J

9 July 2008 (ex tempore - revised 9 July 2008)

3584/08 GEORGE HRAIKI AND ANOR v JEAN DOROTHY BELJON AND ORS

JUDGMENT

1 HIS HONOUR: This is an application for an interlocutory injunction, the immediate effect although not the full extent of which would be to restrain a mortgagee sale fixed to take place on Saturday next, 12 July 2008.

2 The plaintiffs are the proprietors of land 53 Dutton Street, Bankstown. The defendants hold a first registered mortgage over that property. There is a second registered mortgage and, allegedly, an unregistered third mortgage "protected" by a caveat.

3 On any view, the plaintiffs have made default under their mortgage to the defendants. The defendants have recovered judgment for possession. The writ was executed, and vacant possession was given to the defendants, on 21 May 2008.

4 The plaintiffs' case is that the Consumer Credit Code applies to the mortgage given by them to the defendants and to the underlying credit contract. The defendants rely on a certificate under s 11 of the Code. The plaintiffs say that that certificate is ineffective. Accordingly, they say, the Code must be taken to apply.

5 Further, the plaintiffs say that the defendants have not complied with the requirements of s 80 of the Code, which provides for certain things to be done before a credit provider can begin enforcement proceedings.

6 Finally, the plaintiffs say, the circumstances in which they came to give the mortgage in question to the defendants are such that the transaction is unjust, and may be reopened under s 70 of the Code.

7 It is unnecessary, and having regard to the fact that this is an interlocutory application undesirable, to traverse the facts in excessive detail. The plaintiffs sought a…

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 Hraiki v Beljon

Details

AGLC: Hraiki v Beljon [2008] NSWSC 775
Case: [2008] NSWSC 775
Decision Date: 9 July 2008

CaseChat Overview and Summary

The case of Hraiki v Beljon involves a dispute between the plaintiff, Hraiki, and the defendant, Beljon, regarding a mortgage sale. The plaintiff sought to restrain the sale of a mortgage on the grounds that the sale was not conducted in accordance with the Consumer Credit Code. The legal issues before the court were whether the Consumer Credit Code applied, whether a certificate that did not identify the credit provider was valid under section 11, whether the certificate was given after the credit contract was made, and whether the delay in making a payment into Court affected the proceedings. The court examined the relevant provisions of the Consumer Credit Code and the circumstances surrounding the mortgage sale and the certificate provided. The court found that the Consumer Credit Code did apply to the mortgage sale and that the certificate in question was not valid because it did not identify the credit provider. Additionally, the court held that the certificate was given after the credit contract was made, and the delay in making a payment into Court did not impact the proceedings. The court's decision was based on a thorough analysis of the evidence and the legal principles involved, leading to the conclusion that the mortgage sale was not conducted in accordance with the Consumer Credit Code. The final orders of the court were that the sale of the mortgage was to be restrained, and the parties were directed to take certain steps to comply with the Consumer Credit Code.

Orders