Perpetual Trustees Victoria Ltd v Monas [2010] NSWSC 1156

Perpetual Trustees Victoria Ltd v Monas [2010] NSWSC 1156

Leave to amend Defence and Cross-Claim to add hardship application was refused because the loan contract exceeded the statutory monetary threshold at the time it was made; threshold must be determined at contract date, rendering proposed amendments futile under both previous and current credit codes.

Source-derived case information.

Jurisdiction
Australia
Judgment Date
05 November 2010
Procedural Posture
Possession Proceedings / Interlocutory Motions—amendment and Separate Questions
Outcome
Defendant’s Notice of Motion for leave to amend dismissed; Plaintiff’s Notice of Motion stood over; Defendant ordered to pay Plaintiff’s costs of Defendant's Motion.
Legal Topics
['credit Contracts' 'hardship Provisions' 'threshold Determination' 'statutory Interpretation' 'amendment of Pleadings' 'separate Questions']
['civil Procedure' 'consumer Credit Law'] ['credit Contracts' 'hardship Provisions' 'threshold Determination' 'statutory Interpretation' 'amendment of Pleadings' 'separate Questions']

Source-derived case record

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Procedural Posture

Possession Proceedings / Interlocutory Motions—amendment and Separate Questions

Legal Issues

  1. 1 ['Whether leave should be granted to amend Defence and Cross-Claim to add hardship claim under National Credit Code' 'Relevant date for the monetary threshold in hardship application—date of contract or date of application' 'Utility of ordering separate questions as to compliance with statutory notice requirements']

Ratio Decidendi

Leave to amend Defence and Cross-Claim to add hardship application was refused because the loan contract exceeded the statutory monetary threshold at the time it was made; threshold must be determined at contract date, rendering proposed amendments futile under both previous and current credit codes.

Court Disposition

Defendant’s Notice of Motion for leave to amend dismissed; Plaintiff’s Notice of Motion stood over; Defendant ordered to pay Plaintiff’s costs of Defendant's Motion.

Orders

  • ["The Defendant's Notice of Motion filed 9 September 2010 is dismissed." "The Plaintiff's Notice of Motion filed 7 September 2010 is stood over to the hearing of the proceedings." "The Defendant is to pay the Plaintiff's costs of the Defendant's Notice of Motion."]