First Mortgage Managed Investments Ltd v Oberlechner [2006] NSWSC 1397

New South Wales Supreme Court

CITATION : First Mortgage Managed Investments Ltd v Oberlechner [2006] NSWSC 1397 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 30/6/2006

JUDGMENT DATE : 19 December 2006

JURISDICTION : Supreme Court

JUDGMENT OF : Rothman J

DECISION : i. the notice of motion filed by the defendant on 21 February 2006 be dismissed; ii. any and every stay of the orders of the Court issued on 21 September 2005 is set aside on and from 8 January 2007; iii. the defendant pay the plaintiff's costs of the proceedings, as agreed or assessed; iv. the proceedings are otherwise dismissed.

CATCHWORDS : CIVIL LAW - possession of property - enforcing consent orders - enforcing a judgment - cannot vary or avoid contract upon which judgment has been based - refinancing of mortgages over investment properties to discharge bankruptcy is not credit provided predominantly for personal, domestic or household purposes where mortgagor is otherwise solvent - consent judgment not set aside.

Consumer Credit (New South Wales) Act 1995 (NSW) Contracts Review Act 1980 (NSW) LEGISLATION CITED : Industrial Relations Act 1996 (NSW) Real Property Act 1900 (NSW) Uniform Civil Procedure Rules

Chamberlain v DCT (1988) 164 CLR 502 Hall Chadwick v Doyle [2006] NSWSC 1195 Jonsson v Arkway Pty Ltd (2003) 58 NSWLR 451 Linkenholt Pty Ltd v Quirk [2000] VSC 166 CASES CITED : Logwon Pty Ltd v Council of the Shire of Warringah (1993) 33 NSWLR 13 Metropolitan Water Baord v London, Brighton & South Coast Railway Co [1910] 1 KB 804 Perpetual Trustee Compnay Limited v Albert and Rose Khoshaba [2006] NSWCA 41 Project Blue Sky v ABA (1998) 194 CLR 355 Somander v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677 Tszyu v Fightvision Pty Ltd (2001) 104 IR 225