Avery v Saree Holdings Ltd; Lava Ltd v Avery [2012] NSWSC 463

Supreme Court New South Wales

Medium Neutral Citation: Avery v Saree Holdings Ltd; Lava Ltd v Avery [2012] NSWSC 463 Hearing dates: 15/02/10, 16/02/10, 17/02/10, 18/02/10, 26/07/10, 27/07/10, 28/07/10, 29/07/10, 2/08/10, 3/08/10, 4/08/10, 5/08/10, 6/08/10, 21/04/11, 11/05/11 Decision date: 09 May 2012 Jurisdiction: Equity Division Before: Slattery J Decision: Judgment for possession in the Lava proceedings not set aside - No illegal scheme found in Saree proceedings directions for an account. Catchwords: REAL PROPERTY - mortgages - whether monies owing on mortgage - whether side agreement that monies not owing effective - two proceedings heard together-brought by mortgagor, Ms Avery against first and second mortgagees of Torrens title land, respectively Lava and Saree - first mortgagee entered judgment for possession against plaintiff/mortgagor in March 2009 - plaintiff/mortgagor seeks to set aside in Lava proceedings - plaintiff/mortgagor seeks declaratory relief against Saree mortgagee.

PROCEDURE - judgment and orders - varying, amending or setting aside - whether existing judgment for possession in Lava proceedings should be set aside under UCPR, r 36.15 as irregularly entered due to Consumer Credit Code, s 80 notice not being served before commencement of proceedings - whether "sufficient course" is shown to set aside judgment - HELD - no irregularity in the entry of judgment - in any event sufficient cause not shown to set aside judgment for possession.

CONSUMER CREDIT - credit protection - general - regulated contracts and regulated mortgages - whether by the application of Consumer Credit Code, s 6(1) the Code applies to Lava's loan agreement to the plaintiff in the Lava proceedings - whether plaintiff/mortgagor "ordinarily resident" in jurisdiction under Code, s 6(1)(a) - whether charge made for providing the credit under Code, s 6(1)(b) - whether credit provided in the course of a business Code, s 6(1)(d) - HELD: Code applies - is a regulated credit contract.