LNCP002 Pty Ltd v Feridun Akcan [2021] NSWSC 848

LNCP002 Pty Ltd v Feridun Akcan [2021] NSWSC 848

The lender was estopped from relying on default due to its conduct; an implied contractual term required provision of a loan statement upon request to enable repayment; failure to provide was breach of contract and unconscionable conduct; lender's representation about 'actioning' loan statement request was not misleading/deceptive conduct.

Jurisdiction
Australia
Judgment Date
16 July 2021
Procedural Posture
Principal Judgment / Post Hearing, Final Orders
Outcome
Statement of claim dismissed; cross-claim upheld with relief granted.
Legal Topics
['breach of Contract' 'implied Terms' 'promissory Estoppel' 'unconscionable Conduct' 'misleading or Deceptive Conduct']
['contracts' 'equity' 'consumer Law' 'property Law'] ['breach of Contract' 'implied Terms' 'promissory Estoppel' 'unconscionable Conduct' 'misleading or Deceptive Conduct']

Case Brief

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Procedural Posture

Principal Judgment / Post Hearing, Final Orders

Legal Issues

  1. 1 ['Was payment defaulted under the mortgage loan?' 'Did the lender act unconscionably in failing to provide a loan statement and issuing a default notice?' 'Was there an implied term requiring prompt provision of a loan statement?' 'Did the lender engage in misleading or deceptive conduct regarding provision of a loan statement?']

Ratio Decidendi

The lender was estopped from relying on default due to its conduct; an implied contractual term required provision of a loan statement upon request to enable repayment; failure to provide was breach of contract and unconscionable conduct; lender's representation about 'actioning' loan statement request was not misleading/deceptive conduct.

Court Disposition

Statement of claim dismissed; cross-claim upheld with relief granted.

Orders

  • ['Statement of claim dismissed.' 'Plaintiff to issue loan statement free of default notation within seven days.' 'Loan statement to apply 2.29% interest rate from 8 April 2020 until settlement, offset against payments made.' 'Plaintiff/cross-defendants to pay costs to defendant/cross-claimants.' 'Leave to apply to...