Priority Lending Australia Pty Ltd v Martinsville Pty Ltd (No 2) [2021] NSWSC 850

Supreme Court New South Wales

Medium Neutral Citation: Priority Lending Australia Pty Ltd v Martinsville Pty Ltd (No 2) [2021] NSWSC 850 Hearing dates: 9 July 2021 Decision date: 14 July 2021 Jurisdiction: Common Law Before: Adamson J Decision: (1) Set aside default judgment entered on 7 September 2020 in the sum of $1,011,200.42. (2) Set aside default judgment for possession entered on 1 October 2020 in respect of the property known as [REDACTED], Martinsville NSW 2265. (3) Direct the parties to provide to my Associate, within seven days, a minute of order in respect of other judgments affected by these reasons. (4) Grant leave to the first, second and third defendants to file a defence in the form of annexure "A" to the affidavit of the second defendant sworn 28 June 2021, such defence to be filed within seven days. (5) Order the first, second and third defendants to pay the plaintiffs' costs of the notice of motion. (6) Stand the matter over for further directions before me on 27 July 2021. Catchwords: CIVIL PROCEDURE — Notice of motion — Default judgment for plaintiffs on liquidated claim and on the claim for possession — Plaintiffs granted leave to issue a writ of possession — Borrower and guarantors seeking that the judgments be set aside and a stay of the writ — Application to set aside turn on whether there exists a defence on the merits or a triable issue — Whether interest clause is void for uncertainty and its construction are triable issues — Whether interest rate provision qualifies as a penalty is a triable issue — Whether second loan was unconscionable and unjust are defences that raise triable issues — Explanation for delay given — Default judgments ought be set aside CONTRACTS — Construction of loan agreements — Whether terms of the first loan are unconscionable and the second loan is unjust by reason of its terms and surrounding circumstances — Considered in the context of whether there exist triable issues Legislation Cited: Australian Consumer Law, ss 237, 243 Australian Securities and Investments Commission Act 2001 (Cth), ss 12CA, 12CB Civil Procedure Act 2005 (NSW) Contracts Review Act 1980 (NSW) Real Property Act 1900 (NSW), s 57 Uniform Civil Procedure Rules 2005 (NSW), rr 14.3, 34.16 Cases Cited: Commercial Banking Co of Sydney Ltd v Pollard [1983] 1 NSWLR 74 Dai v Zhu [2013] NSWCA 412 Kellas-Sharpe v PSAL Ltd [2013] 2 Qd R 233; [2012] QCA 371 Magnate Projects Pty Ltd v Youma Constructions (No 2) Pty Ltd [2005] NSWCA 331 Re Funds in Court; Application of Mango Credit Pty Ltd [2016] NSWSC 199 Category: Procedural rulings Parties: Priority Lending Australia Pty Ltd (First Plaintiff) Alan Lee Walker t/as Alan Lee Walker and Andre Leon Lakomy (as receivers of Martinsville Pty Ltd) (Second Plaintiff) Martinsville Pty Ltd (First Defendant) Anthony James Murray (Second Defendant) Jamey Melissa Murray (Third Defendant) National Australia Bank Limited (Fourth Defendant) Representation: Counsel: J Pokoney (Plaintiffs) P Afshar (First, Second and Third Defendants) D Hennessey (Fourth Defendant)