Secure Funding Pty Ltd v Hamilton (No. 3) [2024] NSWSC 330

Supreme Court New South Wales

Medium Neutral Citation: Secure Funding Pty Ltd v Hamilton (No. 3) [2024] NSWSC 330 Hearing dates: 22 November 2023 Date of orders: 28 March 2024 Decision date: 28 March 2024 Jurisdiction: Common Law Before: Lonergan J Decision: Judgment for possession granted. See orders at par [64]. Catchwords: LAND LAW – possession of land early and regular default – previous judgment for possession but subsequent agreements and forbearance – no payments since October 2019 – defence arguments have no merit – possession granted and judgment for the lender Legislation Cited: National Consumer Credit Protection Act 2009 (Cth) National Credit Code (Cth) Cases Cited: Clambake Pty Ltd v Tipperary Projects Pty Ltd (No 7) [2009] WASC 390 Secure Funding Pty Limited v Hamilton (No. 2) [2022] NSWSC 990 Category: Principal judgment Parties: Secure Funding Pty Limited (Plaintiff) Wayne Keith Hamilton (First Defendant) Michele Ann Masters (Second Defendant) Representation: Counsel: N Riordan (Plaintiff)

Solicitors: Norton Rose Fulbright (Plaintiff) File Number(s): 2021/00350675 Publication restriction: Nil

Judgment 1. The plaintiff lending company ("Secure") seeks judgment for possession of land, leave to issue a writ for possession immediately and judgment in a sum of money, including interest, owed to it by the defendants under a loan agreement secured on a property at Sawyers Gully. 2. The proceedings were commenced in December 2021. There have been delays to allow the defendants time and opportunity to obtain pro bono legal assistance and to pursue various industry-based complaints with the relevant consumer credit authorities. 3. The defendants allege in their defence that although they admit the existence of a debt to Secure, the debt was contained in a judgment entered in this Court on 12 February 2009 in previous proceedings for possession, and so their debt "merged" in that judgment. 4. The consequence of this is alleged by the defendants to be that the debt is no longer governed by the terms of the original Loan Agreement and so the subsequent arrangements for payment of the debt made by Secure with the defendants were all invalid because they did not comply with certain provisions of the National Consumer Credit Protection Act 2009 (Cth) ("the Act"), and the National Credit Code (Cth) ("the Code"). They also assert there was no consideration for those later agreements and so the agreements are invalid on that basis as well. 5. There was a further argument put in the alternative, that if the original Loan Agreement does apply, Secure undertook as a term of that agreement to charge a rate that is similar to other variable rate loans that it provides to customers, but the rates applied to the defendants' loan did not correspond to those similar variable rate loans. 6. For the reasons that follow, the defendants' arguments fail and there will be judgment for Secure.