Instant Loan Solutions v. Cramer

[2008] QSC 13

[2008] QSC 13

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

ATKINSON J

No 3203 of 2007

INSTANT LOAN SOLUTIONS

Plaintiff

and

ROLAND CRAMER

and

VIRGINIA FREEBODY

First Defendant

Second Defendant

BRISBANE

..DATE 08/02/2008

ORDER

HER HONOUR:  This is an application to dismiss an application brought by Ronald Cramer and Virginia Freebody to re-enter the property that has been their home.

This is a tragic case involving the loss of home for a couple and their child, but the result unfortunately is an inevitable result of what has gone on.

The defendants, Mr Cramer and Ms Freebody were both made bankrupt on 30th of August 2006.  Since then, of course, they have not had the title to any property which has become vested in their trustee in bankruptcy.

They have, therefore, no interest in the property which they seek to re-enter.  The trustee in bankruptcy has declined to take any action.  The debt to the second mortgagee, Instant Loan Solutions Pty Ltd, has continued to rise.  That is unfortunately, in part, not just of the difficulty that the defendants had in repaying, but also because of what appears to me to be a crippling interest rate charged by the second mortgagee.

But such interest rates are not illegal (although there is a strong case for the legislature to make them so) and were the subject of a contract made between the finance company and the defendants who were no doubt desperate to get the loan and so agreed to that interest rate.

Unfortunately, very often people who are so desperate to get money that they will agree to a crippling interest rate, are the people who are least likely to be able to repay and therefore the security of the mortgage is called in.  That is what has happened here. 

The plaintiff, Instant Loan Solutions Pty Ltd has the right to re-enter and sell the property.  The sooner the property is sold, so long as it is not sold at an undervalue, in a sense the better off the defendants will be because that will stop the interest rate from accruing, as it does otherwise.

I therefore unfortunately dismiss the application brought by Mr Cramer and Ms Freebody. 

I am not going to order costs against people who are impoverished and clearly have no capacity to pay it and are just doing the best they can in the terrible circumstances they find themselves in.  So, the application is dismissed.  There will be no order as to costs.

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