Hamafam Pty Ltd & Ors v Saadullah & Anor [2007] NSWSC 818

New South Wales Supreme Court

CITATION : Hamafam Pty Ltd & Ors v Saadullah & Anor [2007] NSWSC 818

HEARING DATE(S) : 18 June 2007

JUDGMENT DATE : 31 July 2007

JURISDICTION : Common Law Division

JUDGMENT OF : Hislop J

DECISION : (1) The default judgment entered against the defendants on 28 November 2006 is set aside. (2) The writ of possession dated 28 November 2006 in respect of the subject property is set aside. (3) The defendants are to file and serve a defence to the statement of claim filed on 11 September 2006 by 4.00pm on 7 August 2007. (4) The costs of this application are to be costs in the cause. (5) The Court authorises the plaintiffs to begin fresh enforcement proceedings against the defendants in respect of the default under the mortgage without requiring a default notice to be given pursuant to s80(2) of the Consumer Credit Code. (6) The funds held in trust by the plaintiffs' solicitors pursuant to the order of this Court made on 23 March 2007 may be released to the plaintiffs. (7) The proceedings are stood over to the registrar's list at 9.00am on 14 August 2007 for further directions.

CATCHWORDS : MORTGAGE - Consumer Credit Code - default notice not given - default judgment set aside.

Uniform Civil Procedure Rules LEGISLATION CITED : Consumer Credit Code Contracts Review Act

Jonsson v Arkway (2003) 58 NSWLR 451 CASES CITED : Park Avenue Nominees v Boon [2001] NSWSC 700 Permanent Mortgages Pty Ltd v Cook [2006] NSWSC 1104 Rafiqi v Wacai Investments Pty Ltd (1998) ASC 1550-024 (District Court, Qld)

Hamafam Pty Ltd (ACN 112 118 519) (4th Plaintiff) Roger Julius Barsony (1st Plaintiff) Deidre Lynn Love (2nd Plaintiff) Keith Love (3rd Plaintiff) Alfred Stricker (5th Plainiff) PARTIES : Kuselis Levitas (6th Plaintiff) Max Weidman (7th Plaintiff) Robert Kremnizer (8th Plaintiff) Margaret Mae Hipsley (9th Plaintiff) Patricia Ruth Hipsley (10th Plaintiff) Anwar Ahmad Saadullah (1st Defendant) Zaimah Saadullah (2nd Defendant)