Lawteal Pty Limited v McClymont & anor [2009] NSWSC 637

Lawteal Pty Limited v McClymont & anor [2009] NSWSC 637

The Consumer Credit Code is excluded by the business/investment purpose declaration. The plaintiff complied with clause 80 notices as a precaution. There is no credible evidence the provider or its agents knew the loan was for personal purposes. The breaches of mortgage terms entitle the plaintiff to possession and enforcement via writ.

Jurisdiction
Australia
Judgment Date
07 July 2009
Procedural Posture
Possession of Land Mortgage / Principal Judgment
Outcome
Judgment for the plaintiff
Legal Topics
['possession of Land' 'mortgage' 'consumer Credit Code Exclusion' 'default' 'enforcement of Mortgage']
['property Law'] ['possession of Land' 'mortgage' 'consumer Credit Code Exclusion' 'default' 'enforcement of Mortgage']

Case Brief

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Procedural Posture

Possession of Land Mortgage / Principal Judgment

Legal Issues

  1. 1 ['Whether the Consumer Credit Code applies or is excluded by the declaration' 'Whether the plaintiff complied with statutory procedures under the Consumer Credit Code' 'Whether the mortgage amount amendment affects enforceability' 'Whether the plaintiff is entitled to possession based on loan default']

Ratio Decidendi

The Consumer Credit Code is excluded by the business/investment purpose declaration. The plaintiff complied with clause 80 notices as a precaution. There is no credible evidence the provider or its agents knew the loan was for personal purposes. The breaches of mortgage terms entitle the plaintiff to possession and enforcement via writ.

Court Disposition

Judgment for the plaintiff

Orders

  • ['Judgment entered for plaintiff for possession of property identified as 5/SP12139, also known as 5/567-569 Pacific Highway, Killara' 'Writ of execution may issue, to lie in the office for twenty-eight days from today' 'Defendants to pay plaintiff’s costs thrown away as a result of adjournment']