Equititrust v SLJM [2010] NSWSC 1059

1. The lender had specifically structured the loan to try and avoid the Code;
2. The lender knew at the time of execution of the declaration the loan was not within the Code;
3. The funds were used primarily to purchase a residential property in Hunters Hill.

The lender had not issued a notice pursuant to s80 of the Code.

Justice Gzell favoured the evidence of the lender. A solicitor had witnessed the declaration as to purposes of the funds. A solicitor had certified advice was given that the Code did not apply. The lender had accepted therefore that the Code did not apply. Further, the lender believed at the time of the loan that the Hunters Hill Property was to be an investment. The fact that the guarantor later moved into it does not alter the fact it was to be an investment.

Accordingly, the lender was granted monetary judgment and judgment for possession.

It should be noted that a loan to an individual for investment or renovation of property is now within the National Credit Code.

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