Husband and wife borrowers made no payments at all under their loan but continued to receive rental income from the commercial premises which secured the loan.
Possession proceedings were on foot and in the meantime the lender sought to restrain the borrowers from receiving rental income and to have it paid into a blocked account and secondly, to strike out the defence.
The wife’s defence was that her signatures were forged. However, one of her affidavits contradicted this and no reason was given for this contradiction. The wife also raised a claim of unconscionability pursuant to the wife’s equity principle. However the court noted that the wife was not a volunteer because while repudiating the loan she nevertheless asserted ownership of the property. Accordingly, neither of her defences seemed at all strong.
However, the court refused to shut the wife out from a full hearing at such an early stage noting:
The Court is mindful that this is a preliminary proceeding and the borrower, albeit in breach of the orders of this Court that she file and serve her defence in the Possession claim, almost three months ago, has not yet fully put on her defence. It may be that there will be some evidence that goes to support contentions that in my view appear currently to be resoundingly hollow.