01 October 2015


We have previously reported on this case, in which the lender was granted possession. The borrower appealed and sought a stay on the basis that the borrower had nowhere to place the dairy cows and the borrower’s dairy enterprise could be destroyed. The borrower sought a 6 months stay to vacate the farm and re-establish the business. The borrower said she had taken no steps to vacate because she had wrongly believed that filing a notice of intention to appeal operated as an automatic stay. She had done so without investigating the merits of her appeal from a lawyer, but simply in the belief that doing so would operate as a stay.

The court noted there was no material to base any view as to whether the grounds of an appeal had merit. The judgment indicated none. The court noted that reasonably arguable grounds of appeal are highly relevant to a stay. The lender has said that for as long as he remains unable to enforce his judgment, he will lose something approaching $25,000 per month, calculated at an interest rate of 6 percent per annum. The court refused the stay.

Click here to read the full judgement

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Kate Cooper joined Bransgroves Lawyers in 2006 and has been a partner since 2009. Kate specialises in Supreme Court litigation in the fields of mortgage enforcement, professional negligence and originator/funder disputes. She has an extensive transactional practice including, origination deeds, aggregation deeds, commercial and construction lending and mortgage securitisation.

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