TTW Financial Pty Ltd v TSF Group Pty Ltd - [2025] NSWSC 850

Supreme Court

New South Wales

Medium Neutral Citation: TTW Financial Pty Ltd v TSF Group Pty Ltd & Ors [2025] NSWSC 850
Hearing dates: 29 July 2025
Date of orders: 01 August 2025
Decision date: 01 August 2025
Jurisdiction: Common Law
Before: Hamill J
Decision:
At [43], but in summary:
(1) Set aside the default judgment except the judgment for possession of the land.
(2) Orders for distribution of proceeds of any sale of the property.
(3) List the matter for final hearing on 11-12 September 2025.
(4) Case management orders at [43].

Catchwords:
CIVIL LAW – application to set aside default judgment – judgment for possession and repayment of money lent and interest – debt to private lender secured by guarantee and mortgage – whether arguable defence – where previous defence struck out – applicability of National Credit Code – whether arguable that transaction a “sham” – where loan to company secured by property owned by individual who was the sole director – whether attempt to resurrect same defence that was previously struck out – relevance of delay – extent of prejudice to plaintiff – where application to set aside judgment related only to amount of interest – no contest as to principal sum – no contest that lender entitled to sell property – whether arguable defence of unconscionability

Legislation Cited:
Contracts Review Act 1980 (NSW)
National Consumer Credit Protection Act 2009 (Cth)
National Credit Code (Cth)
Uniform Civil Procedure Rules 2005 (NSW), r 36.16(2)

Cases Cited:
Brackenridge v Bendigo and Adelaide Bank Ltd [2021] SASCA 129
Commonwealth Bank of Australia v Wales [2012] NSWSC 407
Dai v Zhu [2013] NSWCA 412
Equititrust v SLJMPty Ltd [2010] NSWSC 1059
Magnate Projects Pty Ltd v Youma Constructions (No 2) Pty Ltd [2005] NSWCA 331
National Australia Bank Ltd v McCarthy [2014] NSWSC 1819
Perpetual Trustee Company Limited v Albert and Rose Khoshaba [2006] NSWCA 41
Pham v Gall [2020] NSWCA 116
Pope v Aberdeen Transport Co Pty Ltd [1965] NSWR 1550
Raftland Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia (2008) 238 CLR 516; [2008] HCA 21
Reinehr Industrial Lease & Finance Pty Ltd v Jordan (Court of Appeal (NSW), 4 June 1974, unrep)
Stubbings v Jams 2 Pty Ltd (2022) 276 CLR 1; [2022] HCA 6

Texts Cited:
N/A

Category: Procedural rulings
Parties: TTW Financial Pty Ltd (Plaintiff)
TSF Group Pty Ltd (First Defendant)
Stephen James Moore (Second Defendant)
Tweed Heads Pty Ltd (Third Defendant)
Representation:
Counsel:
A Oakes (Plaintiff)
T Cleary (Second Defendant)
Solicitors:
EXC Law (Plaintiff)
Woods Lawyers (Second Defendant)

File Number(s): 2025/00065370
Publication restriction: N/A

JUDGMENT

This case involves default on a loan agreement secured by a guarantee and mortgage over real property in Strathfield and came before the Court on Tuesday this week in circumstances of some urgency. While the urgency had diminished to a degree by the time the matter was heard, it remained important to resolve the current issue quickly.
By an amended notice of motion filed…

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: [2025] NSWSC 850
Decision Date: 01 August 2025

CaseChat Overview and Summary

In the Federal Circuit Court, TTW Financial Pty Ltd sought to set aside a default judgment entered in favour of TSF Group Pty Ltd in a matter involving a debt secured by a mortgage over property. The principal dispute was over the amount of interest due on a loan from TTW to TSF, with the primary judgment awarding both the principal sum and interest to TTW. The defence of TSF Group sought to challenge the amount of interest claimed and to set aside the default judgment, arguing that the transaction might constitute a "sham" under the National Credit Code and that the interest charged was unconscionable. The court had to determine whether the defence presented a valid arguable case for setting aside the default judgment, particularly in light of the previous striking out of a similar defence.

The court considered whether the defence of unconscionability was arguable, despite the prior striking out of a similar defence. The court noted that the delay in bringing the application and the extent of prejudice to TTW Financial were significant factors. The court also examined whether the transaction could be considered a "sham" under the National Credit Code, given the nature of the loan and the security provided by an individual who was also the sole director of the company. The court assessed the relevance of these factors and whether they justified setting aside the default judgment, particularly as there was no contest over the principal sum or the lender's right to sell the property.

The Federal Circuit Court held that the defence of unconscionability was not arguable given the delay in the application and the prejudice caused to TTW Financial. The court found that the previous striking out of a similar defence was a significant factor, and the current application was an attempt to resurrect the same defence. The court also determined that the defence of the transaction being a "sham" under the National Credit Code was not sufficiently arguable. Consequently, the court dismissed the application to set aside the default judgment, leaving the judgment for possession and repayment of the principal sum and interest intact.

The final orders of the court were that the application to set aside the default judgment was dismissed, and the default judgment in favour of TTW Financial Pty Ltd remained enforceable. The court did not alter the amount of interest awarded, and the right of TTW Financial to sell the mortgaged property was upheld. The court's decision emphasised the importance of timely and diligent legal proceedings, particularly in cases where similar defences have previously been struck out.

Orders