Perpetual Limited (formerly known as Perpetual Trustees Australia Limited) v Marwa Dilati and Khalid Ali Khalid

Perpetual Limited, the mortgagee, sought possession of residential property from Marwa Dilati and Khalid Ali Khalid, the mortgagors, after they defaulted on their mortgage repayments. The mortgage included a clause stating that notice of the amount due was not required to be given to the mortgagor. The Federal Circuit and Family Court of Australia considered whether this clause was a valid agreement exempting the mortgagee from the requirement to give notice as stipulated in section 58A of the Real Property Act 1900 (NSW).

The primary issue was whether the clause in the mortgage agreement exempted the mortgagee from the statutory requirement to provide a notice of the amount due under section 58A. The court examined whether the clause constituted an agreement under the section, effectively dispensing with the statutory notice requirements. The mortgagors argued that the clause was void or ineffective because it contravened public policy and was contrary to the statutory requirement. The mortgagee contended that the clause was valid and enforceable as it was a clear agreement between the parties.

The court held that the clause in the mortgage agreement was not an effective agreement dispensing with the notice requirements under section 58A of the Real Property Act. The clause did not explicitly refer to the statutory notice requirement, nor did it clearly and unambiguously state that the notice was not necessary. The court found that the clause was not a sufficient agreement to dispense with the statutory notice because it did not clearly indicate that the parties intended to rely on the clause to avoid the statutory notice requirements. Consequently, the mortgagee was required to give the mortgagors the statutory notice of the amount due before exercising the power of sale.

The court ordered that the mortgagee was required to provide the mortgagors with the statutory notice of the amount due before proceeding with the power of sale. The proceedings for possession were stayed pending the mortgagee's compliance with this requirement.