Arraf v Jonvana Enterprises [2006] NSWSC 1432

In this case the borrower made an urgent application to the court to restrain the lender from selling the land as the mortgagee exercising power of sale. The borrower claimed he was not in default as he had made arrangements for a third party to pay the mortgage. Justice Palmer dismissed the plaintiff’s application because an agreement with a third party to pay the mortgage provides no defence in law or equity to a claim by the lender. Furthermore, the borrower had failed to properly instruct his solicitor so that she was ignorant of details of the defaults or any proposed repayment. The borrower also stated that he had never received the s57(2)(b) notice but the evidence showed it was delivered to his last known address. The court also found that the delay by the borrower in taking any action to oppose the power of sale (as the defendant has been trying to communicate with him since 2004) also meant that relief sought should be declined.

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