Avery v Saree Holdings Ltd; Lava Ltd v Avery [2012] NSWSC 463

Avery v Saree Holdings Ltd; Lava Ltd v Avery [2012] NSWSC 463

Judgment for possession in the Lava proceedings will not be set aside as the alleged irregularity relates to the commencement, not entry, of judgment. There was sufficient cause for finality and Ms Avery consented to judgment. Consumer Credit Code applies to Lava loan but non-compliance with s 80 does not invalidate the judgment for possession. There was no illegal scheme or sham in the Saree mortgage; genuine advances were made and an account must be taken to determine amount owing, rather than a declaration of nil liability.

Parties
Plaintiff: Leanne Maree Avery; Defendant: Saree Holdings Limited; Plaintiff/cross Defendant: Lava Ltd; Defendant/cross Claimant: Leanne Maree Avery
Jurisdiction
Australia
Judgment Date
09 May 2012
Procedural Posture
Principal Judgment / Final Judgment With Directions for Further Accounting/orders
Outcome
Judgment for possession in the Lava proceedings not set aside; Saree proceedings not dismissed; directions for taking an account between Ms Avery and Saree Holdings Ltd; parties to make submissions for further orders and costs.
Legal Topics
Mortgages, Judgment for Possession, Setting Aside Orders, Consumer Credit Code, Redemption, Accounts, Illegal Scheme, Side Agreement, Residence, Charges, Business of Credit, Defences, Cross Claims
Real Property Procedure Consumer Credit Mortgage Law Equity Mortgages Judgment for Possession Setting Aside Orders +10 more

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Parties

Leanne Maree Avery

Plaintiff

Saree Holdings Limited

Defendant

Lava Ltd

Plaintiff/cross Defendant

Leanne Maree Avery

Defendant/cross Claimant

Procedural Posture

Principal Judgment / Final Judgment With Directions for Further Accounting/orders

Legal Issues

  1. 1 Whether judgment for possession in the Lava proceedings should be set aside under UCPR r 36.15 due to non-compliance with Consumer Credit Code s 80
  2. 2 Whether the Consumer Credit Code applies to the Lava loan and mortgage
  3. 3 Whether there was an illegal scheme or sham transaction in creation of the Saree mortgage

Ratio Decidendi

Judgment for possession in the Lava proceedings will not be set aside as the alleged irregularity relates to the commencement, not entry, of judgment. There was sufficient cause for finality and Ms Avery consented to judgment. Consumer Credit Code applies to Lava loan but non-compliance with s 80 does not invalidate the judgment for possession. There was no illegal scheme or sham in the Saree mortgage; genuine advances were made and an account must be taken to determine amount owing, rather than a declaration of nil liability.

Court Disposition

Judgment for possession in the Lava proceedings not set aside; Saree proceedings not dismissed; directions for taking an account between Ms Avery and Saree Holdings Ltd; parties to make submissions for further orders and costs.

Orders

  • Lava's judgment for possession remains standing; motion to set aside dismissed.
  • Directions for account between Ms Avery and Saree Holdings Ltd.