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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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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