Permanent Custodians Limited v Carolyn Joy Upston [2007] NSWSC 223

Permanent Custodians Limited v Carolyn Joy Upston [2007] NSWSC 223

The Consumer Credit Code applies because more than half of the loan was for personal/domestic use. Valid notice of default was served and came to the defendant's attention. The hardship provisions of s 68 of the Code may be invoked after expiry of the notice and acceleration. Defendant's loss of income due to failed business is 'other reasonable cause', satisfying s 66. The court is satisfied the defendant can meet future obligations if contract is changed, thus orders variation of the contract accordingly.

Parties
Plaintiff: Permanent Custodians Limited; Defendant: Carolyn Joy Upston
Jurisdiction
Australia
Judgment Date
16 March 2007
Procedural Posture
Civil / Judgment on Statement of Claim and Cross Claim
Outcome
Plaintiff's action dismissed, cross-claim granted in part with orders for contract variation and costs.
Legal Topics
Consumer Credit Code, Mortgage Enforcement, Hardship Applications, Notice of Default, Contract Variation
Consumer Credit Real Property Contracts Consumer Credit Code Mortgage Enforcement Hardship Applications Notice of Default Contract Variation

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Parties

Permanent Custodians Limited

Plaintiff

Carolyn Joy Upston

Defendant

Procedural Posture

Civil / Judgment on Statement of Claim and Cross Claim

Legal Issues

  1. 1 Whether the Consumer Credit Code applies to the loan and mortgage
  2. 2 Whether valid notice of default was served
  3. 3 Whether defendant is entitled to orders under s 68 of the Consumer Credit Code

Ratio Decidendi

The Consumer Credit Code applies because more than half of the loan was for personal/domestic use. Valid notice of default was served and came to the defendant's attention. The hardship provisions of s 68 of the Code may be invoked after expiry of the notice and acceleration. Defendant's loss of income due to failed business is 'other reasonable cause', satisfying s 66. The court is satisfied the defendant can meet future obligations if contract is changed, thus orders variation of the contract accordingly.

Court Disposition

Plaintiff's action dismissed, cross-claim granted in part with orders for contract variation and costs.

Orders

  • Pursuant to s 68(2) Consumer Credit Code, the contract is changed to postpone the three relevant payments until 22 March 2007, capitalise sums due, and extend the contract for 30 years from 22 March 2007 with continued monthly instalments at the contract rate.
  • Liberty to either party to apply on 48 hours notice for further orders as required to give effect.