Bank of Queensland v Balasingam [2015] VSC 536

The bank obtained default judgment for possession but did not execute warrants because there were negotiations to refinance but the arrangements were breached. Another warrant issued and the borrower again applied for a stay of execution.

The court said:

The starting point is that the party who has obtained a judgment is entitled to have it enforced without further delay. The court should focus on special circumstances that go to the question of the enforcement of the judgment, rather than the judgment’s validity, in determining whether to grant a stay. In essence the critical question is whether the borrower has established that there are special or exceptional circumstances that would justify a stay.

The borrower explained that the difficulties that he has experienced in servicing his debt were associated with a number of misfortunes that have befallen him. The borrower offered to undertake to the court to repay the loan arrears by the end of the month and make his monthly repayments and refinance the loan. On the other hand, the court noted a long history between the parties of the bank not enforcing the default judgment for possession that it obtained more than four years ago and the indulgences already given.

The court granted a short stay for 14 days to enable the borrower to obtain an unconditional letter of offer for refinance within that period and if that is done, to extend the stay for another month.

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