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MAG Financial and Investment Ventures Pty Ltd v El-Saafin [2022] VSCA 286

Victorian Court of Appeal
McLeish, Sifris and Walker JJA

MAG Financial and Investment Ventures P/L (ACN 625 790 623) & Anor (according to the attached Schedule) v El-Saafin, Hassan & Ors (according to the attached Schedule)

Judgment Date: 
21 December 2022

CONSUMER CREDIT - Credit protection - Whether loan agreement unenforceable by reason of s 39 of Consumer Credit (Victoria) Act 1995 - Whether loan agreement a 'credit contract' for purposes of Act - Whether loan a provision of credit to which National Credit Code applies - Whether credit provided to purchase, renovate or improve residential property - Credit must be provided for immediate purpose of debtor purchasing, renovating or improving residential property - Insufficient that ultimate purpose the purchase, renovation or improvement of residential property by third party - Loan provided to debtor to on-lend to third party to improve property - Loan not credit to which Code applies - Loan not a 'credit contract' for purposes of Act - Leave to appeal granted - Appeal allowed.

MORTGAGES - Tender - Whether judge erred in finding amounts tendered sufficient to discharge indebtedness - Whether mortgagor able to secure sufficient funds to discharge mortgage - No error shown.

National Consumer Credit Protection Act 2009 (Cth) sch 1; Consumer Credit (Victoria) Act 1995 ss 39, 40.

Lauvan Pty Ltd v Bega (2018) 330 FLR 1, Jonsson v Arkway Pty Ltd (2003) 58 NSWLR 451, Mango Media Pty Ltd v Comitogianni [2011] NSWSC 152, Provident Capital Ltd v Bortolin Papa [No 1] [2011] NSWSC 460, discussed.