Yusofzai v Andask Pty Ltd [2019] NSWSC 124

Yusofzai v Andask Pty Ltd [2019] NSWSC 124

The injunction was refused because the National Credit Code did not apply to the credit facility where the debtor was Y Corp Developments Pty Ltd and the arrangement was not shown to be a sham; the Default Notice was served in accordance with s 170 of the Conveyancing Act 1919 (NSW); the Default Notice was neither misleading nor invalid; no waiver or election by Andask Pty Ltd was demonstrated; and the balance of convenience favoured the defendant given the lateness of the application, incurred sale costs, the plaintiffs' inability to repay or refinance, and uncertainty about sufficient equity in the property.

Jurisdiction
Australia
Judgment Date
28 February 2019
Procedural Posture
Application for Injunction to Restrain Mortgagee's Power of Sale / Plaintiffs' Summons Filed 15 February 2019, Heard the Afternoon Before Scheduled Auction
Outcome
Plaintiffs' injunction application dismissed; costs ordered by consent.
Legal Topics
["mortgagee's Power of Sale" 'service and Validity of Default Notice' 'national Credit Code Applicability' 'waiver and Election' 'balance of Convenience']
['injunctions' 'mortgages and Securities' 'consumer Credit'] ["mortgagee's Power of Sale" 'service and Validity of Default Notice' 'national Credit Code Applicability' 'waiver and Election' 'balance of Convenience']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Injunction to Restrain Mortgagee's Power of Sale / Plaintiffs' Summons Filed 15 February 2019, Heard the Afternoon Before Scheduled Auction

Legal Issues

  1. 1 ['Whether a notice was required under s 88 of the National Credit Code.' 'Whether the Default Notice under s 57(2)(b) of the Real Property Act 1900 (NSW) and s 92 of the Conveyancing Act 1919 (NSW) was properly served.' 'Whether the Default Notice was misleading or invalid because it stated that the lender may exercise its power of sale.' 'Whether Andask Pty Ltd waived its rights to call up the loan by statements concerning payment of interest.' 'Whether the balance of convenience favoured granting an injunction.']

Ratio Decidendi

The injunction was refused because the National Credit Code did not apply to the credit facility where the debtor was Y Corp Developments Pty Ltd and the arrangement was not shown to be a sham; the Default Notice was served in accordance with s 170 of the Conveyancing Act 1919 (NSW); the Default Notice was neither misleading nor invalid; no waiver or election by Andask Pty Ltd was demonstrated; and the balance of convenience favoured the defendant given the lateness of the application, incurred sale costs, the plaintiffs' inability to repay or refinance, and uncertainty about sufficient equity in the property.

Court Disposition

Plaintiffs' injunction application dismissed; costs ordered by consent.

Orders

  • ["The plaintiffs' summons filed 15 February 2019 is dismissed." "By consent, the plaintiffs pay the defendant's costs fixed in the sum of $6,583.50."]