Richardson v HomeSec Finance Express Pty Limited [2013] NSWSC 821

Supreme Court New South Wales

Medium Neutral Citation: Richardson v HomeSec Finance Express Pty Limited [2013] NSWSC 821 Hearing dates: 19 June 2013 Decision date: 21 June 2013 Jurisdiction: Common Law Before: Adams J Decision: 1. The mortgagor is estopped from commencing the new proceedings.

2. The statement of claim is summarily dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005. Legislation Cited: Contracts Review Act 1980 (NSW) Civil Procedure Act 2005 (NSW) Fair Trading Act 1987 (NSW) National Consumer Credit Protection Act 2009 (Cth) National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (Cth) National Credit Code Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: HomeSec Finance Express Pty Ltd v Richardson [2012] NSWSC 1365 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Category: Principal judgment Parties: Jill Richardson (Plaintiff) HomeSec Finance Express Pty Limited (Defendant) Representation: Counsel: M W Young SC (Defendant)

Solicitors: Bransgroves Lawyers (Defendant) File Number(s): 2013/78573

Judgment

Introduction 1. This motion is brought to strike out a statement of claim filed on 14 March 2013 (the new proceedings) in relation to the same mortgage in respect of which the mortgagor unsuccessfully defended an action, in substance, brought to enforce the mortgage and unsuccessfully sued the mortgagees in a cross-claim. The new proceedings seek various declarations with respect to alleged breaches by the mortgagees of the National Consumer Credit Protection Act 2009 (Cth) (NCCPA) and the National Credit Code (NCC) and injunctions restraining the mortgagees from enforcing the mortgage and the enforcement of the prior judgment, together with compensation and possession of the mortgaged properties, and, under the NCC, orders that the mortgage be re-opened, voiding interest charges over 24% per annum and fees over 5% and fees and charges as being "harsh and unconscionable". 2. The Notice of Motion was filed on 4 June 2013 and served by ordinary mail and email as specified in the Statement of Claim. There was, however, no appearance by the plaintiff and the motion was heard in her absence.