ANZ v Hancock [2013] NSWSC 441

The bank had commenced proceedings after the borrowers defaulted on their mortgage. The borrowers had initially filed a defence that set out the circumstances of the default, being a serious fire and resulting difficulties with insurance and financial problems. However the court had struck this defence out because it did not set out any legal defence to the default.

One of the borrowers (Mr Hancock) had then been made bankrupt. He was trying to review this decision in other proceedings. The other borrower (Mrs Hancock) had already agreed she did not have a defence and was trying to sell the property. This was being prevented by a caveat that had been lodged due to Mr Hancock’s bankruptcy. The case had been adjourned several times.

The bank asked the court for default judgment because the borrowers had no defence. Mrs Hancock was asking the court to put the case over to a later date to see whether Mr Hancock was successful in having the bankruptcy set aside and the caveat removed. She told the court she would then try to refinance or sell the property to pay the bank’s debt.

The judge decided that there had already been three months delay and it was not appropriate to delay for another two months, especially when it was not clear whether Mr Hancock would be successful or the property could be sold. The judge also found that proceedings reviewing Mr Hancock’s bankruptcy were being delayed by his own actions in not filing the required documents and evidence when required.

The judge refused to put the case over and made an order in favour of the bank granting default judgment so that the bank could exercise its legal remedies including sale of the property.

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