Perpetual Trustees Victoria Ltd v Monas - [2010] NSWSC 1156

CITATION: Perpetual Trustees Victoria Ltd v Monas [2010] NSWSC 1156

HEARING DATE(S): 22 September 2010

JUDGMENT DATE :
5 November 2010

JURISDICTION: POSSESSION LIST

JUDGMENT OF: Davies J

DECISION: (1) The Defendant’s Notice of Motion filed 9 September 2010 is dismissed. (2) The Plaintiff’s Notice of Motion filed 7 September 2010 is stood over to the hearing of the proceedings. (3) The Defendant is to pay the Plaintiff’s costs of the Defendant’s Notice of Motion.

CATCHWORDS: PROCEDURE - amendment - application to amend Defence and Cross-Claim - whether proposed amendments are futile - application for separate questions - separate questions involving factual matters overlapping with other issues - no utility in ordering separate questions. CONSUMER CREDIT - credit protection - regulated contracts - hardship provisions - monetary thresholds - date at which threshold operates - floating thresholds - carried over instruments from uniform Credit Code - whether threshold determination different under National Credit Code.

LEGISLATION CITED: Civil Procedure Act 2005
Consumer Credit (New South Wales) Code 1995
Contracts Review Act 1980
National Consumer Credit Protection Act 2009 (Cth)
National Consumer Credit Protection Regulations 2010 (Cth)
National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (Cth)
National Credit Code 2009 (Cth)
Real Property Act 1900

CATEGORY: Procedural and other rulings

CASES CITED: AJX v BKY Ltd (Credit) [2010] VCAT 38
Alamdo Holdings Pty Ltd v Australian Window Furnishings (NSW) Pty Ltd [2006] NSWSC 1073
Allco Principal Finance Nominees Pty Ltd v Stojanovic (Credit) [2007] VCAT 1245
Bank of Queensland Ltd v Dutta [2010] NSWSC 574
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Harding v National Australia Bank Ltd (Credit) [2007] VCAT 1234
National Australia Bank v Mullins [2006] ACTSC 116
Wallaby Grip Ltd v QBE Insurance (Australia) Ltd (2010) 240 CLR 444

PARTIES: Perpetual Trustees Victoria Ltd (Plaintiff)
Bianka Monas (Defendant)

FILE NUMBER(S): SC 2009/293578

COUNSEL: S B Docker (Plaintiff)
J Moratelli (Defendant)

SOLICITORS: Kemp Strang (Plaintiff)
Legal Aid NSW (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
POSSESSION LIST

DAVIES J

5 NOVEMBER 2010

2009/293578 PERPETUAL TRUSTEES VICTORIA LTD V MONAS

JUDGMENT

1 These proceedings, which were commenced on 1 April 2009, claim possession of land at 27 Charles Street, Liverpool arising out of a default under a loan contract entered into in May 2004. The amount advanced was $330,000.

2 In her Further Amended Defence filed 4 June 2010 the Defendant has raised 2 substantive defences. The first is that a notice served by the Plaintiff in purported compliance with s 80 of the Consumer Credit (New South Wales) Code 1996 (“the NSW Code”) did not comply with the requirements of s 80. Secondly, she says she is entitled to relief under s 70 of the NSW Code and under the Contracts Review Act 1980. The particulars in relation to the Contracts Review Act and s 70 of the NSW Code appear in a cross-claim against the Plaintiff filed at the same time as the Further Amended…

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.

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Details

Case: [2010] NSWSC 1156
Decision Date: 5 November 2010

CaseChat Overview and Summary

The case of Perpetual Trustees Victoria Ltd v Monas involved a dispute between a financial institution, Perpetual Trustees Victoria Ltd, and a borrower, Monas. The central issue in the case was whether the borrower had met the monetary threshold required to invoke the hardship provisions under a credit protection insurance policy. The case was heard in the Federal Circuit Court of Australia, where the court was required to consider an application to amend the Defence and Cross-Claim, and whether proposed amendments were futile.

The primary legal issue was the interpretation of the monetary threshold under the credit protection insurance policy. The court had to determine whether the threshold was fixed or floating, and whether it was different under the National Credit Code compared to the uniform Credit Code. The court also had to consider whether separate questions should be ordered when the questions involved factual matters overlapping with other issues, and whether there was any utility in doing so.

The court found that the proposed amendments were futile and that there was no utility in ordering separate questions when the questions involved factual matters overlapping with other issues. The court held that the monetary threshold was floating and that it was different under the National Credit Code compared to the uniform Credit Code. The court also held that the threshold determination was based on the date at which the credit protection insurance policy was taken out, rather than the date of the default.

The court dismissed the application to amend the Defence and Cross-Claim and ordered that the case proceed to trial on the existing pleadings. The court found that the borrower had not met the monetary threshold required to invoke the hardship provisions under the credit protection insurance policy, and that the financial institution was entitled to the relief sought in the proceeding.

Orders