Sgargetta v NAB

[2014] VSCA 159

Victorian Court of Appeal

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Evidence
2. › Fresh evidence on appeal
3. › Principles governing admission
4. › Whether evidence could have been discovered with reasonable diligence
5. › Whether evidence reasonably credible
6. › Whether opposite result would have been produced
1. Mortgages and Securities
2. › Possession proceedings
3. › Deed of settlement
4. › Compliance with conditions
5. › Obligation to provide conditional letter of approval for finance on terms acceptable to mortgagee
6. › Whether documents provided constituted compliance
7. › Whether attempted payment overcame failure to comply with prior condition
1. Mortgages and Securities
2. › Unconscionability
3. › Conduct of mortgagee with respect to deed of settlement
4. › Whether reliance on contractual entitlement constituted unconscionable conduct
5. › Australian Consumer Law, s 21
1. Consumer Credit
2. › National Credit Code
3. › Statement of payout figure
4. › Whether credit provider contravened obligation to provide written payout statement
5. › Whether compliance with s 83 is a condition precedent to institution of proceedings for possession
6. › National Consumer Credit Protection Act 2009 (Cth), Sch 1, ss 82, 83, 84

Quick Take

A mortgagee's reliance on its contractual entitlements under a deed of settlement, upon the mortgagor's default, does not constitute unconscionable conduct under s 21 of the Australian Consumer Law. Non-compliance with s 83 of the National Credit Code (obligation to provide written payout statement) does not preclude a credit provider from enforcing its rights to recover possession, as the section provides for a criminal penalty but does not restrict property rights. The Court provisionally observed that s 84 of the National Credit Code requires a court to determine the amount the credit provider is legally entitled to, not an amount the court considers reasonable in all the circumstances.