First Cash Flow Solutions Pty Ltd v Saad [2023] NSWSC 686

First Cash Flow Solutions Pty Ltd v Saad [2023] NSWSC 686

Payment Default Fee, Risk Fee, and Default Management Fee imposed by plaintiff were penalties and unenforceable, as they were unconscionable and out of all proportion to any loss likely to be suffered and could be charged indefinitely after facility terminated; only principal, justified interest, administration fees, discharge and legal fees, rejected direct debit fees to be awarded. Plaintiff's entitlement comprehensively protected by contract and indemnity for loss and costs.

Jurisdiction
Australia
Judgment Date
22 June 2023
Procedural Posture
Civil Debt Recovery / Final Judgment
Outcome
Judgment for plaintiff, partial award of claimed amount, costs awarded
Legal Topics
['commencement of Proceedings by Summons' 'liquidated Damages' 'penalty Clauses' 'mortgage Enforcement' 'onus of Proving Penalty' 'unconscionable Contractual Terms']
['equity' 'civil Procedure' 'contract Law'] ['commencement of Proceedings by Summons' 'liquidated Damages' 'penalty Clauses' 'mortgage Enforcement' 'onus of Proving Penalty' 'unconscionable Contractual Terms']

Case Brief

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Procedural Posture

Civil Debt Recovery / Final Judgment

Legal Issues

  1. 1 ['Whether plaintiff is entitled to recover claimed fees under Deed of Loan Facility' 'Whether payment default, risk, and management fees are enforceable or penalties' "Court's role in undefended proceedings"]

Ratio Decidendi

Payment Default Fee, Risk Fee, and Default Management Fee imposed by plaintiff were penalties and unenforceable, as they were unconscionable and out of all proportion to any loss likely to be suffered and could be charged indefinitely after facility terminated; only principal, justified interest, administration fees, discharge and legal fees, rejected direct debit fees to be awarded. Plaintiff's entitlement comprehensively protected by contract and indemnity for loss and costs.

Court Disposition

Judgment for plaintiff, partial award of claimed amount, costs awarded

Orders

  • ['Judgment in favour of plaintiff against defendant for $132,304.08.' "Defendant to pay plaintiff's costs of and incidental to the proceedings on indemnity basis."]