Permanent Custodians Limited v Leybourne [2009] NSWSC 288

Permanent Custodians Limited v Leybourne [2009] NSWSC 288

The plaintiff is entitled to judgment for possession and debt as the loan agreement and mortgage were validly executed, not unjust or unenforceable, and the defendant's cross claim failed for want of evidence. Relief under the Consumer Credit Code and Contracts Review Act did not apply as the amount exceeded regulatory thresholds and no injustice was proved.

Jurisdiction
Australia
Judgment Date
20 April 2009
Procedural Posture
Civil / Judgment
Outcome
Judgment for plaintiff for possession of land and mortgage debt; judgment for cross defendant (plaintiff) on cross-claim; defendant to pay plaintiff's costs.
Legal Topics
['mortgage' 'possession of Land' 'loan Agreement Enforcement' 'consumer Credit Code' 'contracts Review Act' 'enforcement Expenses']
['property Law' 'contract Law' 'consumer Credit Law'] ['mortgage' 'possession of Land' 'loan Agreement Enforcement' 'consumer Credit Code' 'contracts Review Act' 'enforcement Expenses']

Case Brief

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Procedural Posture

Civil / Judgment

Legal Issues

  1. 1 ['Whether the plaintiff is entitled to possession of land and recovery of the mortgage debt' 'Validity and enforceability of the mortgage and loan agreement' 'Whether the loan agreement is unjust under the Consumer Credit Code or Contracts Review Act' 'Authority of solicitor to sign agreement on behalf of lender' 'Incorporation and sufficiency of terms by reference to memorandum' 'Correctness and consequence of property valuation supplied by borrower' "Entitlement and inclusion of enforcement expenses in borrower's debt" 'Untenable cross claim by defendant']

Ratio Decidendi

The plaintiff is entitled to judgment for possession and debt as the loan agreement and mortgage were validly executed, not unjust or unenforceable, and the defendant's cross claim failed for want of evidence. Relief under the Consumer Credit Code and Contracts Review Act did not apply as the amount exceeded regulatory thresholds and no injustice was proved.

Court Disposition

Judgment for plaintiff for possession of land and mortgage debt; judgment for cross defendant (plaintiff) on cross-claim; defendant to pay plaintiff's costs.

Orders

  • ['Judgment for possession of land identified' 'Judgment for the sum calculated including mortgage debt and interest at default rate' 'Dismissal of cross claim' "Defendant to pay plaintiff's costs of the action including cross claim" 'Application to stay execution of writ for possession may be heard']