NSW Caselaw
New South Wales Supreme Court
CITATION : Maytom v Perpetual Trustees Victoria Limited [2010] NSWSC 765
HEARING DATE(S) : 8 July 2010 JURISDICTION : Equity
JUDGMENT OF : Pembroke J
EX TEMPORE JUDGMENT DATE : 8 July 2010
DECISION : See judgment
CATCHWORDS : INJUNCTION - mortgagee's power of sale - principles - necessity for underlying cause of action - insufficient to prove offer to redeem, availability of finance and hardship - CONTRACT - obligations not conditional - performance of notice obligation not condition precedent to entitlement to charge increased rates and charges
CATEGORY : Principal judgment
Bowes v Chaleyer (1923) 32 CLR 159 Harvey v McWatters (1948) 49 SR (NSW) 173 CASES CITED : Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161 Parist Holdings Pty Ltd v Perpetual Nominees Ltd [2006] NSWSC 599 Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 Solid Holdings v IMFML Finance [2008] NSWSC 573
PARTIES : Gary Alan Maytom Perpetual Trustees Victoria Limited
FILE NUMBER(S) : SC 2010/231418
COUNSEL : M Dicker - for the plaintiff P Newton - for the defendant
SOLICITORS : Warren McKeon Dickson - Plaintiff Kemp Strang Lawyers - Defendant
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION
PEMBROKE J
THURSDAY 8 JULY 2010
GARY ALAN MAYTOM v PERPETUAL TRUSTEES VICTORIA LIMITED
EX TEMPORE JUDGMENT
1 HIS HONOUR: This is an application by the plaintiff to restrain the exercise of the defendant's power of sale in respect of the property at 70 Glenning Road, Glenning Valley, New South Wales. The loan agreement between the plaintiff and the defendant was entered into in July 2007. The statements issued by the defendant to the plaintiff indicate that as interest rates were varied from time to time throughout the term of the loan, the plaintiff did not maintain the payments that were due by him to the defendant and that numerous dishonour fees and default interest charges were debited to the account. 2 The loan history reveals, with increasing clarity, a predictable story of lump sum payments by the plaintiff to meet outstanding arrears from time to time in order to catch up with charges to the account.
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