Equititrust v SLJM [2010] NSWSC 1059

Equititrust v SLJM [2010] NSWSC 1059

The Consumer Credit Code did not apply as the borrower was a company (SLJM Pty Limited), not an individual; the documentation was not a sham or pretence; the interest structure was not a penalty; plaintiff entitled to possession orders, leave to issue writ, conduct of sale, and monetary judgment.

Parties
Plaintiff: Equititrust Limited; First Defendant: SLJM Pty Limited; Second Defendant: Mick Bechara Hakim; Third Defendant: Yvonne Hakim; Fourth Defendant: HI-TEK Communications Pty Limited; Fifth Defendant: Perpetual Trustees Victoria Limited; Sixth Defendant: National Australia Bank Limited; Seventh Defendant: Westpac Banking Corporation
Jurisdiction
Australia
Judgment Date
22 September 2010
Procedural Posture
Loan Enforcement / Mortgage Possession / Judgment After Contested Hearing
Outcome
Judgment for plaintiff. Possession and leave to issue writ granted. Orders for sale of mortgaged properties to be conducted by the lender. Judgment for outstanding sum including interest (to be calculated).
Legal Topics
Consumer Credit Code, Sham Transactions, Guarantor Liability, Penalty Interest, Mortgage Possession, Sale of Mortgaged Property
Contract Law Credit Law Property Law Consumer Credit Code Sham Transactions Guarantor Liability Penalty Interest Mortgage Possession +1 more

Case Brief

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Parties

Equititrust Limited

Plaintiff

SLJM Pty Limited

First Defendant

Mick Bechara Hakim

Second Defendant

Yvonne Hakim

Third Defendant

HI-TEK Communications Pty Limited

Fourth Defendant

Perpetual Trustees Victoria Limited

Fifth Defendant

National Australia Bank Limited

Sixth Defendant

Westpac Banking Corporation

Seventh Defendant

Procedural Posture

Loan Enforcement / Mortgage Possession / Judgment After Contested Hearing

Legal Issues

  1. 1 Whether the Consumer Credit Code applied to the loan facility to SLJM Pty Limited
  2. 2 Whether the loan arrangements were a sham or pretence and individuals the real debtors
  3. 3 Whether interest rate provisions were penalties

Ratio Decidendi

The Consumer Credit Code did not apply as the borrower was a company (SLJM Pty Limited), not an individual; the documentation was not a sham or pretence; the interest structure was not a penalty; plaintiff entitled to possession orders, leave to issue writ, conduct of sale, and monetary judgment.

Court Disposition

Judgment for plaintiff. Possession and leave to issue writ granted. Orders for sale of mortgaged properties to be conducted by the lender. Judgment for outstanding sum including interest (to be calculated).

Orders

  • Judgment for possession of mortgaged properties.
  • Leave to issue writ of possession.