RHG Mortgage Corporation Limited v Saunders [2016] NSWSC 929

RHG Mortgage Corporation Limited v Saunders [2016] NSWSC 929

The conversation of 18 May 2015 did not objectively amount to an oral hardship application under s 72 of the National Credit Code, so there was no non-compliance giving rise to any irregularity, illegality or want of good faith in entry of default judgment under UCPR 36.15. In any event, the defendant's proposed defence based on the alleged hardship application did not raise an arguable or triable issue for UCPR 36.16 purposes, the defendant had been repeatedly warned that judgment would be sought and gave no adequate explanation for his delay, there was little or no equity in the property, and there was no evidence that he could service the loan in the future. It was therefore not in the...

Jurisdiction
Australia
Judgment Date
06 July 2016
Procedural Posture
Notice of Motion to Set Aside Default Judgment in Mortgage Possession Proceedings / Application After Default Judgment and Issue of Writ of Possession
Outcome
The defendant's notice of motion to set aside the default judgment was dismissed, and the defendant was ordered to pay the plaintiff's costs on an ordinary basis as agreed or assessed.
Legal Topics
['setting Aside Default Judgment' 'ucpr 36.15' 'ucpr 36.16' 'national Credit Code Hardship Notice' 'mortgage Enforcement' 'possession of Property']
['civil Procedure' 'consumer Credit' 'mortgages' 'real Property'] ['setting Aside Default Judgment' 'ucpr 36.15' 'ucpr 36.16' 'national Credit Code Hardship Notice' 'mortgage Enforcement' 'possession of Property']

Case Brief

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Procedural Posture

Notice of Motion to Set Aside Default Judgment in Mortgage Possession Proceedings / Application After Default Judgment and Issue of Writ of Possession

Legal Issues

  1. 1 ['Whether the default judgment should be set aside under UCPR 36.15 because it was entered irregularly, illegally or against good faith due to alleged non-compliance with the National Credit Code hardship provisions.' 'Whether the defendant made an oral hardship notice under s 72 of the National Credit Code during the conversation of 18 May 2015.' 'Whether any non-compliance with s 72 or s 89A of the National Credit Code would render the enforcement proceedings or default judgment illegal or otherwise require judgment to be set aside.' 'Whether the default judgment should be set aside under UCPR 36.16, including whether the defendant had a bona fide defence raising an arguable or triable issue, an adequate explanation for delay, and whether setting aside was in the interests of justice.']

Ratio Decidendi

The conversation of 18 May 2015 did not objectively amount to an oral hardship application under s 72 of the National Credit Code, so there was no non-compliance giving rise to any irregularity, illegality or want of good faith in entry of default judgment under UCPR 36.15. In any event, the defendant's proposed defence based on the alleged hardship application did not raise an arguable or triable issue for UCPR 36.16 purposes, the defendant had been repeatedly warned that judgment would be sought and gave no adequate explanation for his delay, there was little or no equity in the property, and there was no evidence that he could service the loan in the future. It was therefore not in the...

Court Disposition

The defendant's notice of motion to set aside the default judgment was dismissed, and the defendant was ordered to pay the plaintiff's costs on an ordinary basis as agreed or assessed.

Orders

  • ["The defendant's notice of motion filed 19 May 2016 is dismissed." "The defendant is to pay the plaintiff's costs on an ordinary basis as agreed or assessed."]