NSW Caselaw
New South Wales Supreme Court
CITATION : Secure Funding v Patane [2009] NSWSC 845
HEARING DATE(S) : 14 August 2009
JUDGMENT DATE : 25 August 2009
JURISDICTION : Common Law
JUDGMENT OF : Harrison AsJ
DECISION : (1) The notice of motion filed 7 April 2009 is dismissed. (2) The defendants are to pay the plaintiff's costs as agreed or assessed.
CATCHWORDS : MORTGAGES - mortgages and charges generally - rights and liabilities of mortgagor and mortgagee - mortgagor sought orders pursuant to s 73 Civil Procedure Act 2005 to dismiss proceedings and set aside default judgment for possession – mortgagor sought leave to file defence pursuant to r 36.16 of the Uniform Civil Procedure Rules 2005– proposed defence shows no viable grounds of defence - application dismissed - construction of the mortgage – whether loan agreement clearly acknowledged the registered mortgage – CONTRACTS - general contractual principles - illegal and void contracts - whether default rate of interest and administration fees are penalties – four per cent penalty rate not out of proportion - whether mortgagor's delayed payment of lesser sum than the debt falls within the de minimis exception
LEGISLATION CITED : Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005
CATEGORY : Principal judgment
Acron Pacific Ltd v Offshore Oil NL [1985] HCA 63; (1985) 157 CLR 514 AMEV-UDC Finance Ltd v Austin (1986) 162 CLR 170 Adams v Kennick Trading (International) Ltd & Ors (1986) 4 NSWLR 503 Bay Bon Investments Pty Ltd v Selvarajah [2008] NSWSC 125 Cohen v William (1995) 38 NSWLR 476 Cuttle v Brandt (1947) 64 WN (NSW) 96 CASES CITED : David Securities Pty Ltd v Commonwealth Bank of Australia (1990) 23 FCR 1 Davies v Pagett (1986) 10 FCR 226 Hungerford v Walker (1989) CLR 125 Perpetual Trustees Victoria Ltd v English and Anor [2009] NSWSC 478 Perpetual Trustees Victoria Limited & Anor v Tsai [2004] NSWSC 745 Ringrow Pty Ltd v BP Australia Pty Ltd [200] HCA 71 Vacuum Oil Pty Limited v Stockdale (1942) 42 SR (NSW) 239
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