Perpetual Trustee Company Limited v Agusta Pty Limited [2009] NSWSC 1075

New South Wales Supreme Court

CITATION : Perpetual Trustee Company Limited v Agusta Pty Limited [2009] NSWSC 1075

HEARING DATE(S) : 1-2 June 2009

JUDGMENT DATE : 9 October 2009

JURISDICTION : Common Law

JUDGMENT OF : McCallum J

(1) I order that the second plaintiff provide to the defendant within 14 days a statement of the loan account calculated in accordance with these reasons. DECISION : (2) I order possession in favour of the first plaintiff. (3) I grant leave to the first plaintiff to issue a writ of possession within 21 days after the second plaintiff has complied with order (1). (4) I grant liberty to apply on 48 hours notice in the event that there is a dispute as to the calculation under order (1).

CATCHWORDS : CONTRACTS – general contractual principles – whether loan facility renewed for further term – no formal offer and acceptance – lender's conduct in administration of loan after date of maturity irreconcilable with proceedings commenced by it for possession of security property - CONTRACTS – general contractual principles – implied terms – whether term should be implied requiring lender to give borrower a reasonable opportunity to pay instalment after direct debit declined due to lender's error - CONTRACTS – general contractual principles – breach – whether borrower in default under loan contract because lender had entered wrong BSB number – last digit of BSB number not clear - CONTRACTS – general contractual principles – estoppel – waiver – whether lender estopped from asserting right to higher rate of interest because correspondence was sent to borrower which may have led borrower to believe that the loan facility had been renewed

LEGISLATION CITED : Real Property Act 1900