18 June 2015

A borrower defaulted on three mortgages and the lender obtained judgment for possession. The borrower’s estate was managed by the Office of the Protective Commissioner, by order of the Mental Health Review Tribunal. Some seven years later, the borrower sought to have the judgment set aside on the basis that the mortgages were unjust or misleading without giving any particulars.

The court refused to set aside judgment. The Court noted that there was some irregularity in that no tutor had been appointed at the time default judgment was sought, but that did not render the proceedings void because it was inconsequential given the OPC had decided it was appropriate for the properties to be sold and the loans repaid and so caused no injustice. The court also noted that the borrower had no arguable defence and in any event, the properties had been sold.

Click here to read the full judgment.

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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