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ARTICLE · 06 JUNE 2013

Section 76 National Credit Code - reopening unjust transactions - when is a loan unjust in Queensland?

Cooper Grace Ward
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The crux of the borrower's case was that the loan and mortgage should be reopened because the transaction was unjust.

AustraliaConsumer Protection
Graham Roberts
Graham Roberts
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In the recent decision of the Queensland Court of Appeal in Barker v GE Mortgage Solutions Limited, the lender was successful in opposing the borrower's attempts to reopen a 2007 loan secured by a residential mortgage.

Section 76 of the National Credit Code (Cth) gives the court power to reopen unjust consumer transactions involving a loan, mortgage or guarantee. The section lists a number of factors relevant to the exercise of the court's discretion.

The facts

In Barker, the loan was a 'low doc' loan for $259,250 advanced in 2007 and secured by a residential mortgage. The loan was not for business purposes.

The borrower sought the loan for the purpose of refinancing an existing loan and to pay out other debts.

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