The bank obtained an order to pay surplus funds into court and unilaterally determined to pay a smaller sum into court on the basis that it was entitled to deduct enforcement costs.
The court found that the bank ought to have re-listed the proceedings to vary the order rather than deducting funds from the sum ordered to be paid. The court ordered the bank to pay into the court the part of the fund held back so there could be argument in respect of it. The issue that then arose was whether the amount held back represented past enforcement costs or future legal costs it was anticipated would be incurred by the bank. The borrower was referred to the pro bono panel by the court to be assisted in his claim that he was entitled to the fund.
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