McFarland & Anor v Common Australia Pty Ltd [2018] NSWDC 489

District Court New South Wales

Medium Neutral Citation: McFarland & Anor v Common Australia Pty Ltd [2018] NSWDC 489 Hearing dates: 23 – 24, 30 – 31 August 2018; 3 – 7 September 2018 Date of orders: 07 September 2018 Decision date: 07 September 2018 Jurisdiction: Civil Before: Neilson DCJ Decision: (1) Verdict and judgment for the defendant against the plaintiff on the statement of claim.

(2) Verdict for the cross-claimant against the first cross-defendant Mervyn Christopher McFarland in the sum of $71,732.38.

(3) Verdict and judgment for the cross-claimant against the second cross-defendant Wendy Ann Miller for $13,406.38. Catchwords: CIVIL – CONTRACT – MORTGAGE – VENDOR FINANCE – Defendant sold rural land to the plaintiffs and provided a loan of $100,000 to the plaintiffs to be repaid by three equal annual instalments, secured by a requested first mortgage – Default by plaintiffs – Defendant enters into possession of land – Property offered for sale by public auction

Whether plaintiffs had a statutory claim against defendant under Conveyancing Act 1919 section 111A(4)

Whether plaintiff's had a statutory claim under the National Credit Code – Issues discussed: (a) what was the credit contract; (b) was the contract for the personal, domestic or household purposes of the plaintiffs; (c) whether the contract was incidental to any other business of the defendant

Claim by plaintiffs that defendant converted possessions to its own use – Chattels and fixtures left by plaintiffs on the land – No manifestation of any intention of the defendant to keep chattels adversely in defiance of the plaintiffs rights to the chattels