By Tim Sherrard and Mark Groben – Gadens

On 16 March 2007 the Supreme Court of New South Wales handed down a ground breaking decision.

It appears to be the first time that a borrower has made a hardship application as a cross claim in possession proceedings.

The hardship claim became an effective defence to the proceedings even though no issue was raised about the enforceability of the loan and the mortgage or the borrower’s default. It is relevant to all retail lenders, regarding a hardship application made by a defaulting borrower pursuant to the Consumer Credit Code.

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The Mortgage and Finance Association of Australia (MFAA) welcomes the West Australian government’s revision of the code of conduct legislation for mortgage and finance brokers operating in the state.

The MFAA’s Western Australian Council has worked closely with the WA Department of Consumer Protection through the review of the code and endorses the new legislation.

WA President of the MFAA, Murray Sebbes, said the revised code gives brokers a clear indication of their role and responsibility, while empowering regulators to take action against those few who choose to operate outside these guidelines.

“We are pleased with the end result, particularly the requirement for increased disclosure to the consumer. It has taken several years to evolve the code to ensure it is workable for brokers and does not add costs to doing business or impede small businesses with unnecessary red tape,” Mr Sebbes said.

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