Monas v Perpetual Trustees Victoria Ltd

The appeal in *Monas v Perpetual Trustees Victoria Ltd* concerned the validity of a default notice issued under section 80 of the Consumer Credit (New South Wales) Code. The appellant, Mr Monas, argued that the notice was invalid because it did not precisely adhere to the wording prescribed by section 80(3). The respondent, Perpetual Trustees Victoria Ltd, contended that the notice was sufficient. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether a default notice issued under section 80 of the Consumer Credit (New South Wales) Code must be in the exact terms stipulated by the legislation, or if substantial compliance that reasonably conveys the intended message without misleading the borrower would suffice. A secondary issue concerned the consequences of an inadequate notice, specifically whether it rendered the notice invalid and if the court possessed the power to grant leave for the notice to be rectified retrospectively.

The Court of Appeal held that a default notice under section 80 of the Consumer Credit (New South Wales) Code does not need to be in the exact wording of the statute, provided it reasonably conveys the message intended by the section and is not misleading to the borrower. The Court reasoned that the consequences of an inadequate notice, as outlined in the statute, include restitution and criminal sanctions, which strongly militate against further, more severe consequences such as invalidity. Therefore, a breach of section 80 was considered, at most, an irregularity, and the court retained the power to authorise the notice to proceed retrospectively.

The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.