The lenders obtained summary judgment and an order for possession and the borrower then sought to suspend its enforcement on the basis that judgment was obtained in her absence and the lender’s agent had allegedly falsified income and work history details in the loan application to meet the lender’s criteria and the lender had made no proper enquiries as to their capacity to repay the loan.

The court ordered a stay on the basis that the borrower had reasonable prospects of appealing the judgment. The court noted that there was arguably a failure of procedural fairness in not adjourning the hearing and an arguable defence under the National Credit Code that should go to a trial. The court also noted that the value of the properties exceeded the debt and so the balance of convenience favoured awarding the stay. 

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Matthew Bransgrove, Partner

Matthew Bransgrove has practised exclusively in the field of mortgage law and mortgage related litigation since 1998. He is author of Avoiding Mortgage Fraud in Australia (2015) Lexis Nexis. He is co-author of The Essential Guide to Mortgage Law in NSW (2008) Lexis Nexis and its successor The Essential Guide to Mortgage Law in Australia (2013) Lexis Nexis.

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