20 January 2015

We have previously reported on the first instance decision in this case. This case note relates to the appeal.

The court considered the following sections of the National Credit Code:

Section 72

This section of the Code, allows a debtor to send the credit provider a hardship notice, orally or in writing, advising of the debtor’s inability to meet their obligations. 

The credit provider in turn must advise the debtor whether they agree to change the credit contract, if not, the reasons why they have not agreed and provide the contact details of their external dispute resolution provider. 

Section 74

This section of the Code, allows the debtor to approach the court and seek an order changing the terms of the credit contract. The court may only change the terms so as so not to reduce the amount ultimately payable by the debtor to the credit provider under the contract.

Section 88

This section of the Code, requires the credit provider to issue a default notice before enforcing a credit contract or mortgage.

Section 89

This section of the Code, allows a debtor to remedy a default within the period specified within a s 88 notice with the effect that the default is treated as if it did not happen. 

Section 89A

This section of the Code, requires the credit provider to stay enforcement of a notice under s 88 until 14 days after the credit provider has responded to a hardship request made under s 72. 

The court noted that the trial judge had not had his attention drawn to s 89A but at the same time, the borrower had not properly articulated his appeal. Accordingly, the court directed the borrower to file its appellants’ case and otherwise dismissed the application. 

Click here to read the full judgment.


LesawebLesa Bransgrove holds a Bachelor of Laws and Bachelor of Commerce from the University of Queensland and a Master of Laws from the University of London. Lesa was admitted as a solicitor of the Queensland Supreme Court in 1996 and the UK Supreme Court in 2002 and as a barrister of the NSW Bar in 2009. After working on the Lehman's litigation Lesa left the bar and joined Bransgroves.

Read more about Lesa Bransgrove