Swart advanced sum of $45,000 to Starceavich on an unregistered mortgage. After Starceavich defaulted Swart seized possession and tried to sell. Starceavich sought an order that Swart return possession pending a decision on a defence raised under the Contracts Review Act and on the basis of unconscionable dealing.
The court considered whether or not Swart had the power to seize possession in the first place and determined that there was no express power in the mortgage or power under the Real Property Act or the common law. In the end however the issue seems to have been moot with the court determining that there was a seriously arguable defence which might result in the contract being re-written and so on the balance of convenience test ordered possession to be restored to the borrower.
Matthew Bransgrove holds a Bachelor of Laws and was admitted to the NSW Supreme Court in 1992. He has presented over fifteen papers for the NSW College of Law on mortgage related topics. He is a co-author of the 2008 LexisNexis textbook ‘The Essential Guide to Mortgage Law in NSW’. He has written ten articles for the NSW Law Society Journal. His articles in the NSW Law Society Journal and his textbook have both been cited with approval by the NSW Supreme Court. He has practised exclusively in the field of mortgage law and mortgage related litigation since 1998.