Bankwest v New South Wales Trustee and Guardian [2015] NSWSC 1340

A widow applied for a further stay to prevent the bank obtaining possession of his deceased’s wife house, in which he and their children lived. Complicating factors were that the couple married in Macedonia, no marriage certificate has been obtainable and the wife did not leave a will. The widow defaulted on the mortgage payments because he had been fully occupied as a carer for his wife, who was extremely ill with a brain tumour. The husband gave evidence of the things he had done to keep up with the mortgage payments, deal with the administration of his late wife’s estate and obtain his marriage certificate. The husband now employed had obtained conditional finance approval from another lender, conditional upon probate being obtained and his capacity to service the loan.

The court took into account the hardship that would be suffered if he and his children were evicted and the likelihood of him soon refinancing and the fact that the bank would suffer no prejudice if mortgage payments were met and granted a further stay until 20 October.

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