King Mortgages Pty Ltd v Nader [2008] NSWSC 108

King Mortgages Pty Ltd v Nader [2008] NSWSC 108

Ms Nader provided sufficient explanation for her delay and established a reasonably arguable defence and cross-claim under the Consumer Credit Code and Contracts Review Act. The evidence supports the argument that the loan may have been for personal or domestic purposes, raising triable issues regarding the enforceability of the contract and the loan's terms. The default judgment and writ must be set aside upon her undertaking to pay arrears, with orders for further conduct of the proceedings.

Jurisdiction
Australia
Judgment Date
20 February 2008
Procedural Posture
Application to Set Aside Default Judgment and Writ of Possession / Interlocutory; Ruling on Setting Aside Default Judgment and Writ of Possession, With Directions for Further Conduct
Outcome
Default judgment and writ of possession set aside. Directions given for further conduct of the action and cross-claim, subject to defendant's undertaking to pay arrears to first mortgagee.
Legal Topics
['default Judgment' 'writ of Possession' 'consumer Credit Code' 'contracts Review Act' 'variation of Mortgage Contracts' 'asset Lending' 'unjust Contracts']
['credit and Finance' 'property Law' 'contract Law' 'civil Procedure'] ['default Judgment' 'writ of Possession' 'consumer Credit Code' 'contracts Review Act' 'variation of Mortgage Contracts' 'asset Lending' 'unjust Contracts']

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Procedural Posture

Application to Set Aside Default Judgment and Writ of Possession / Interlocutory; Ruling on Setting Aside Default Judgment and Writ of Possession, With Directions for Further Conduct

Legal Issues

  1. 1 ['Whether the loan falls within the Consumer Credit Code' 'Whether default judgment and writ of possession should be set aside' 'Whether there is a reasonably arguable defence and cross claim under the Consumer Credit Code and Contracts Review Act' 'Whether the loan and mortgage terms were unjust or excessive']

Ratio Decidendi

Ms Nader provided sufficient explanation for her delay and established a reasonably arguable defence and cross-claim under the Consumer Credit Code and Contracts Review Act. The evidence supports the argument that the loan may have been for personal or domestic purposes, raising triable issues regarding the enforceability of the contract and the loan's terms. The default judgment and writ must be set aside upon her undertaking to pay arrears, with orders for further conduct of the proceedings.

Court Disposition

Default judgment and writ of possession set aside. Directions given for further conduct of the action and cross-claim, subject to defendant's undertaking to pay arrears to first mortgagee.

Orders

  • ['Set aside the judgment/order of 19 February 2007 granting possession to the plaintiff.' 'Set aside the writ for possession of land.' "Order that the defendant pay the plaintiff's costs relating to the application and stays." 'Direct that the defendant file defence and any cross claim within 10 days.' 'Timetable...