COMMONWEALTH BANK OF AUSTRALIA v MASTROS [2008] NSWSC 616

New South Wales Supreme Court

CITATION : COMMONWEALTH BANK OF AUSTRALIA v MASTROS [2008] NSWSC 616

HEARING DATE(S) : Friday 6 June 2008

JUDGMENT DATE : 19 June 2008

JURISDICTION : Common Law

JUDGMENT OF : Hall J at 1

DECISION : The notice of motion seeking an order setting aside default judgment dismissed. Execution of the writ of possession stayed until 4.00 pm on 22 July 2008 to allow the defendant and his family time to relocate to alternative premises.

CATCHWORDS : PRACTICE AND PROCEDURE – judgments and order – setting aside default judgment for possession of land and mortgage debt – whether arguable defence under Contracts Review Act 1980 - CONTRACTS – whether good arguable defence under Contracts Review Act – whether mortgage and loan contract arguably based on asset lending - where purpose of contract was to refinance an existing loan on the property – where evidence of borrower's annual income provided by broker to plaintiff/lender (copies of income tax returns) but defendant denied accuracy of the returns and disputed they were his returns - defendant/borrower refinanced with plaintiff due to his financial capacity and ability to service previous loan secured on the property - knowledge of the risk in the borrower as to his capacity to service the loan - interests of justice - "unwarranted benefit" - level of outstanding debt and value of the property.

Consumer Credit (New South Wales) Code LEGISLATION CITED : Contracts Review Act Uniform Civil Procedure Rules

Elkofairi v Permanent Trustee Co Limited [2002] NSWCA 413 Perpetual Trustee Co Limited v Khoshaba [2006] NSWCA 41 Reinehr Industrial Lease & Finance Pty Limited v Jordan (NSWCA, unreported 4 June 1974, BC7400068) CASES CITED : Riz v Perpetual Trustee Australia Limited (2007) ANZ Conv R 615, [2007] NSWSC 1153 Simpson v Alexander (1926) 26 SR 296 State Bank of NSW v Drury (NSWCA, unreported 4 April 1996, BC9601073) West v AGC (Advances) Ltd (1986) 5 NSWLR 610