Reasons
34I do not consider that the equitable jurisdiction to grant relief against forfeiture is relevant to the Parkers' application in light of the authorities which establish that a clause in a mortgage which suspends payment of the principal owing if payments by instalments are made in accordance with the terms of the agreement between the parties is not a penalty and does not involve forfeiture: Kostopoulos v GE Commercial Finance Australia P/L [2005] QCA 311 at [48]-[54], per Keane JA, McMurdo P and Dutney J agreeing; RHG Mortgage Securities Pty Limited & Ors v BNY Trust Company of Australia Limited & Anor [2009] NSWSC 1432.
35The equitable jurisdiction to relieve against unconscionable conduct does not, however, depend on there being any penalty or property forfeited, for its operation: Legione v Hateley [1983] HCA 11; 152 CLR 406, per Mason and Deane JJ.
36In the particular circumstances of this motion and for the reasons given below, it is, however, unnecessary, and would not be appropriate, to determine whether it is unconscionable for Westpac to refuse to remove the report dated 19 November 2011 from the Veda file.
37Westpac has established that the Veda listing was made regularly. It appears to be common ground that when Westpac notified Veda on 29 November 2011 the total amount of principal became owing by the Parkers because of an unremedied default in payment of an instalment. However, in the events that have happened since that time, Westpac appears to have accepted, by its manager's conduct towards the Parkers, that the total amount is no longer owing. Yet, notwithstanding its conduct, it refuses to inform Veda that the total amount of the principal is no longer owing. Westpac's position appears to be that it will not inform Veda that the total amount of the principal is no longer owing unless and until it is repaid in full.
38One can well understand why, as a practical matter, the relief claimed in the motion is being sought by the Parkers. If granted, there is good reason to suppose that they will be able to refinance the mortgage with another credit provider within the period of the adjournment sought. They would, if relief were granted, no longer be regarded as being in default, which Westpac continues to contend that they are, notwithstanding its conduct in accepting the further payments and informing them that they were not in arrears which would tend to suggest otherwise. Indeed, the proposal by the Parkers is so apparently sensible that it is difficult to understand why Westpac has not agreed to it without the Parkers needing to file the present motion. However, whatever practical appeal the orders sought in the motion might have (as to which I make no judgment), I do not consider that they can, or ought, be made.
39Even were it open to me to decide, on the basis of the evidence adduced on the motion, that it is unconscionable of Westpac to insist that the full amount is owing and to refuse to notify Veda that the full amount is no longer owing, there is a real question whether I have the jurisdiction to do so in an interlocutory application in these proceedings.
40In substance, this is an application by the Parkers for an order that Westpac notify a credit reporting agency that monies are no longer owing by them, in order to put them in a better position to refinance their mortgage with Westpac. I consider that the same principles which applied to prevent Campbell J in Rousseau entertaining the suit for rectification in winding up proceedings apply to prevent my granting the relief sought by the Parkers. I can see why it might be subjectively very useful for the Parkers to have the Veda report changed, but I do not consider that the relief sought in the motion can properly be regarded as objectively advancing the claims made by the defendants in the proceedings. I do not consider that the provisions of s 56 of the Civil Procedure Act were intended to alter, or have the effect of altering, the principles referred to and applied in Rousseau.
41There is an additional reason why the relief cannot be granted at this stage: it effectively determines the proceedings on a final basis. The Court could only grant the relief sought in prayer 1 of the notice of motion to order Westpac to notify Veda that the amount was no longer owing if either the Court determined that it was no longer owing, or if it determined that it would be unconscionable for Westpac to insist that it was. If the relief were granted then it is difficult to see on what basis Westpac could obtain an order for possession since it would be relying on a breach which had been remedied in respect of an account that was no longer in default.
42For completeness I record that I do not, however, accept Westpac's submission that what Johnson J said in Thirup has the effect that the Court would have no jurisdiction to grant the relief sought in the motion if it were sought at a final hearing. Although his Honour did not consider it should be granted in that case, I do not consider that it was argued in such a way as to require the Court to determine whether it had jurisdiction, nor do I consider that Johnson J did any more than express a doubt about jurisdiction.
43These matters are sufficient to deal with the present application.
44For these reasons the notice of motion must be dismissed.
45Westpac seeks its costs of the motion on an indemnity basis. It may be immaterial whether or what any order is made, having regard to the terms of the mortgage which require the Parkers to pay Westpac's costs in any event. However, notwithstanding the terms of the mortgage relating to costs, an order for costs remains in my discretion: Kyabram Property Investments Pty Ltd v Murray [2005] NSWCA 87 at [14], per Beazley JA.
46I consider that the costs of the motion ought be costs in the cause. If the Parkers succeed at final hearing on the arguments they have made as to unconscionability in support of their motion, it is just that Westpac bear the costs of the motion, notwithstanding that the Parkers have failed on their motion. I consider this to be sufficient reason for the Court not to reflect the provisions relating to costs in the mortgage in the costs order.
47For the foregoing reasons, I make the following orders:
(1)Dismiss the defendants' notice of motion filed in Court on 5 April 2012.
(2)Order that the costs of the motion be costs in the cause.