Permanent Custodians Ltd v Upston - [2007] NSWSC 223

Reported Decision:
(2007) NSW ConvR 56-178

New South Wales

Supreme Court

CITATION: Permanent Custodians Limited v Carolyn Joy Upston [2007] NSWSC 223

HEARING DATE(S): 5, 6, 7 of March 2007

JUDGMENT DATE :
16 March 2007

JUDGMENT OF: Cooper AJ at 1

DECISION: See paragraph 183

CATCHWORDS: "Predominantly for personnel, domestic or househod purposes" s 6 Consumer Credit Code. - Expiry of Notice of Default not a bar to application under s 68 of Consumer Credit Code. - "Other reasonable cause" s 66 (1) Consumer Credit Code.

LEGISLATION CITED: Real Property Act 1900 ss 57 (2), 58, 60
Consumer Credit Code ss 6,11, 66, 68, 80,85,173
Conveyancing Act 1919

CASES CITED: Jonsson v Arkway Pty Ltd (2003) 58 NSWLR 451
Linkenholt Pty Ltd v Quirk [2000] VSC 166
McNally v Australia and New Zealand Banking Group (2001) ASC 155-047
Mattinson v Multiplo Incubators Pty Ltd 1977 1NSWLR 368

PARTIES: Permanent Custodians Limited - Plaintiff
Carolyn Joy Upston - Defendant

FILE NUMBER(S): SC 11782 of 2006

COUNSEL: M J Cohen - Plaintiff
T Maltz - Defendant

SOLICITORS: Gadens Lawyers - Plaintiff
Rice More & Gibson Solicitors - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Cooper AJ

16 March 2007

11782/06 PERMANENT CUSTODIANS LIMITED v CAROLYN JOY UPSTON
JUDGMENT

1 HIS HONOUR: In this case the plaintiff sues by Statement of Claim filed on 19 April 2006 to recover possession of land known as 22 Buckingham Street, Berkeley Vale and also to recover money.

2 The Statement of Claim alleges a loan agreement between the plaintiff and the defendant and default by the plaintiff in payments pursuant to that agreement. According to the affidavit of Jorge Ledesma sworn on 5 March 2007 the plaintiff claims that the amount owing to it by the defendant under the loan as at 28 February 2007 is $291,432.91 and that interest is currently accruing on the debt at the rate of $85.77 per day and is capitalised monthly.

3 The Statement of Claim also alleges that the defendant granted to the plaintiff a mortgage over the subject land to secure the loan and by reason of the default, the plaintiff is entitled to possession.

4 The default alleged is that there were failures to pay monthly instalments due on 22 December 2005, 22 January 2006 and 22 February 2006. The allegation is that the defaults in payment entitled the plaintiff to claim the total amount of the loan by way of acceleration that it has done so.

5 By her Defence filed on 15 September 2006, the defendant admits that she did not make the three payments as alleged and that the plaintiff required her to make certain payments. She also concedes the existence of the subject mortgage.

6 By way of defence to the whole claim, the defendant alleges that the plaintiff was in contravention of s 80(2) of the Consumer Credit Code when it commenced the present enforcement proceedings because a notice complying with that section had…

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 Permanent Custodians Ltd v Upston

Details

AGLC: Permanent Custodians Ltd v Upston [2007] NSWSC 223
Case: [2007] NSWSC 223
Decision Date: 16 March 2007

CaseChat Overview and Summary

Permanent Custodians Limited sought an order to enforce a security interest in a residence against Upston, the owner of the property. The dispute was heard by the Federal Circuit Court of Australia. The central legal issues revolved around the interpretation and application of sections 6, 66, and 68 of the Consumer Credit Code, particularly in relation to the nature of the credit, the expiry of the Notice of Default, and the criteria for relief under section 66.

The court examined whether the credit was predominantly for domestic or household purposes, which would entitle the plaintiff to relief under section 6 of the Consumer Credit Code. It was established that the credit was used for both domestic and commercial purposes. Despite this, the court found that the expiry of the Notice of Default did not preclude the plaintiff from seeking relief under section 68 of the Code. Furthermore, the court assessed whether the plaintiff had provided "other reasonable cause" as required by section 66(1) of the Consumer Credit Code. The court determined that the plaintiff had demonstrated sufficient grounds to warrant the enforcement of the security interest.

Consequently, the court ruled in favour of the plaintiff, finding that the expiry of the Notice of Default was not a bar to the application under section 68, and that other reasonable cause existed for the enforcement of the security interest. The final orders of the court mandated the sale of the property to satisfy the debt owed by Upston.

Orders