Australian Executor Trustees v Pachkovski [2011] NSWCA 23

A lender had judgment entered in his favour for possession of certain property and the recovery of moneys lent. A writ of possession was issued. The borrowers sought leave to appeal and a stay was granted. The lender sought to have the leave application dimissed and the stay lifted.

Leave to appeal was granted because it was arguable, though on slender grounds. Nevertheless the stay was lifted because evidence of prejudice was demonstrated by the lender. This was that the present value of the property was less than the judgment debt. The court noted that even if the interest rate was incorrect, the borrowers are still liable for the principal due under the mortgage and any interest rate differential could be remedied by the lender reimbursing the difference between the actual interest owed and that for which judgment was given.

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