The Court granted summary judgment for the mortgagee bank, holding that the defendants' defence and counterclaim had no real prospect of success. The Court rejected arguments that a unilateral promissory note discharged the mortgage debt (following ANZ v Evans and Hou v Westpac), that the bank lacked standing due to alleged securitisation or failure to prove the source of funds, and that non-disclosure of the memorandum of common provisions rendered the mortgage unenforceable — holding that the MCP was incorporated by operation of s 91B of the Transfer of Land Act 1958 (Vic) and by the defendants' execution of the mortgage (following Toll v Alphapharm and ANZ v Nguyen). The Court also found that the second defendant's limited English proficiency did not establish unconscionability under Garcia or Yerkey principles where she was a co-borrower (not a guarantor), the bank was not on notice of any special disadvantage, and she had received and continued to enjoy the benefit of the loan. The Court made critical observations about the plaintiff's disproportionate conduct in filing multiple abandoned affidavits and submissions, noting costs consequences under the CPA's overarching obligations.
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