Appleyard & Anor v Westpac Banking Corporation

[2017] QCA 316

Queensland Court of Appeal

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Consumer Credit
2. › National Credit Code
3. › Mortgages to which Code applies
4. › Mortgage securing obligations under both regulated and unregulated contracts
5. › Whether Code restricts enforcement of mortgage to extent it secures unregulated obligations
6. › National Consumer Credit Protection Act 2009 (Cth), sch 1, ss 5, 7(2), 88
1. Statutory Interpretation
2. › Harmonious construction
3. › Relationship between provisions dealing with different subjects
4. › Whether conflict exists between provisions
5. › Whether predominance test in one provision qualifies scope of another
6. › Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
1. Real Property
2. › Mortgages
3. › Enforcement
4. › Possession proceedings
5. › Mortgage securing multiple loan obligations
6. › Default under unregulated loan contract
7. › Whether mortgagee entitled to possession
8. › Land Title Act 1994 (Qld), s 78(2)(c)(i)

Quick Take

Where a mortgage secures obligations under both a regulated credit contract and an unregulated loan contract, the National Credit Code does not restrict enforcement of the mortgage to the extent it secures the unregulated obligations. A mortgagee may enforce the mortgage for default under the unregulated contract without complying with the Code's enforcement requirements (including s 88 default notices), even though the same mortgage also secures a regulated credit contract. The predominance test in s 5(1)(b) applies only to determine whether a particular contract is a credit contract, not to amalgamate separate contracts.