LNCP002 Pty Ltd v Feridun Akcan [2021] NSWSC 848

Supreme Court New South Wales

Medium Neutral Citation: LNCP002 Pty Ltd v Feridun Akcan [2021] NSWSC 848 Hearing dates: 10-12 May 2021 Date of orders: 16 July 2021 Decision date: 16 July 2021 Jurisdiction: Common Law Before: N Adams J Decision: See [242]. Catchwords: CONTRACTS — Breach of contract — alleged default by borrower under mortgage – where due date for payments disputed – whether due date varied orally or in writing by parties – held, due date was varied as advanced by lender CONTRACTS — Implied terms — Terms implied in fact – whether it was an implied term of the loan agreement that the lender would provide a loan statement upon request – where borrower had express right to early repayment of loan – where borrower had to give irrevocable notice specifying the amount to be repaid – held, necessary to imply such a term ESTOPPEL — Promissory estoppel — where borrower believed payment was due on 11th – where lender previously accepted payment on 11th – whether lender entitled to issue default notice due to failure to pay on 8th of the month – held, lender was estopped from issuing default notice CONSUMER LAW — Unconscionable conduct — In connection with goods or services — System of conduct or pattern of behaviour – where lender failed to issue loan statement without reasonable excuse – where lender entered negotiations for deed of forbearance during COVID-19 shutdown – where lender issued default notice during negotiations – where default notice issued two days before borrower believed payment was due – held, lender acted unconscionably under s 21 of the ACL CONSUMER LAW — Misleading or deceptive conduct — Representations as to future matters – where lender said it would "action" request for a loan statement "now" – where lender failed to do so – held, not misleading and deceptive conduct Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth), ss 12BB, 12DA Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, ss 18, 20, 21, 22, 232, 236 Conveyancing Act 1919 (NSW), s 93 Real Property Act 1900 (NSW), s 57(2)(b) Cases Cited: Australian Competition and Consumer Commission (ACCC) v Get Qualified Australia Pty Ltd (In Liq) (No 2) [2017] FCA 709 Australian Competition and Consumer Commission v Medibank Private Ltd (2018) 267 FCR 544; [2018] FCAFC 235 Australian Competition and Consumer Commission (ACCC) v Lux Distributors Pty Ltd [2013] FCAFC 90 Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1; [2019] HCA 18 Awad v Twin Creeks Properties Pty Limited [2012] NSWCA 200 B.P. Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 Blomley v Ryan (1956) 99 CLR 362; [1956] HCA 81 Butt v McDonald (1896) 7 QLJ 68 City of Botany Bay Council v Jazabas Pty Limited (ACN 060 105 053) [2001] NSWCA 94 Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184 Heilbut, Symons & Co v Buckleton [1913] AC 30 Hercules Motors Pty Ltd v Schubert (1953) 53 SR (NSW) 301 Hoyt's Pty Ltd v Spencer (1919) 27 CLR 133; [1919] HCA 64 Kosho Pty Ltd v Trilogy Funds Management Ltd [2013] QSC 135 Nadrak Pty Ltd v Permanent Custodians Ltd (1994) 6 BPR 13,344 Paciocco v Australia and New Zealand Banking Group Ltd (2015) 236 FCR 199; [2015] FCAFC 50 Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596; [1979] HCA 51 Sykes v Reserve Bank of Australia (1998) 88 FCR 511; [1998] FCA 1405 Tonto Home Loans Australia Pty Ltd v Tavares; FirstMac Ltd v Di Benedetto; FirstMac Ltd v O'Donnell [2011] NSWCA 389 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7 Category: Principal judgment Parties: LNCP002 Pty Ltd ACN 637 107 576 (Plaintiff/First Cross-Defendant) Feridun Akcan (Defendant/First Cross-Claimant) Diamond House Jewellery Pty Ltd ACN 083 444 277 (Second Cross-Claimant) MZF Investment Group Pty Ltd ACN 626 166 854 t/as LaunchCap (Second Cross-Defendant) Representation: Counsel: Mr M W Young SC (Plaintiff) Mr M B Evans/Ms V Chan (Defendant)