McFarland & Anor v Common Australia Pty Ltd [2018] NSWDC 489

McFarland & Anor v Common Australia Pty Ltd [2018] NSWDC 489

Plaintiffs failed to establish the applicability of the National Credit Code because defendant did not provide credit as part of, or incidentally to, a business of credit. Defendant did not convert plaintiffs’ chattels as there was no manifestation of adverse claim; the goods were abandoned and no prior request for return was made. No evidence supported a claim of reduced sale value due to the lease registered prior to auction, nor was the auction shown to have been improperly conducted. Defendant was entitled to the mortgage deficiency. Cross-claim for stock losses was partly upheld, apportioning liability for half such losses to the first plaintiff because exclusion of defendant from...

Parties
First Plaintiff/cross Defendant: Mervyn Christopher McFarland; Second Plaintiff/cross Defendant: Wendy Ann Miller; Defendant/cross Claimant: Common Australia Pty Ltd
Jurisdiction
Australia
Judgment Date
07 September 2018
Procedural Posture
Civil / Principal Judgment
Outcome
Judgment for the defendant on the statement of claim; judgment for the cross-claimant on cross-claim.
Legal Topics
Mortgage, Vendor Finance, Conversion, Breach of Contract, Damages, Auction of Land, National Credit Code, Agistment, Trespass to Goods, Sale by Mortgagee, Section 111 a Conveyancing Act
Contract Property Law Torts Credit Law Mortgage Vendor Finance Conversion Breach of Contract +7 more

Case Brief

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Parties

Mervyn Christopher McFarland

First Plaintiff/cross Defendant

Wendy Ann Miller

Second Plaintiff/cross Defendant

Common Australia Pty Ltd

Defendant/cross Claimant

Procedural Posture

Civil / Principal Judgment

Legal Issues

  1. 1 Whether the defendant lawfully exercised power of sale as mortgagee in possession
  2. 2 Whether plaintiffs had claims under Conveyancing Act 1919 s 111A(4)
  3. 3 Whether mortgage fell under the National Credit Code

Ratio Decidendi

Plaintiffs failed to establish the applicability of the National Credit Code because defendant did not provide credit as part of, or incidentally to, a business of credit. Defendant did not convert plaintiffs’ chattels as there was no manifestation of adverse claim; the goods were abandoned and no prior request for return was made. No evidence supported a claim of reduced sale value due to the lease registered prior to auction, nor was the auction shown to have been improperly conducted. Defendant was entitled to the mortgage deficiency. Cross-claim for stock losses was partly upheld, apportioning liability for half such losses to the first plaintiff because exclusion of defendant from...

Court Disposition

Judgment for the defendant on the statement of claim; judgment for the cross-claimant on cross-claim.

Orders

  • Verdict and judgment for the defendant against the plaintiff on the statement of claim.
  • Verdict for the cross-claimant against first cross-defendant Mervyn Christopher McFarland in the sum of $71,732.38.