Bendigo and Adelaide Bank v Karamihos [2013] NSWCA 193

The borrower successfully defended the bank’s claim for possession on the basis of the Contracts Review Act. The bank was appealing the decision and asked the court to make an order that the borrowers could not sell, mortgage or otherwise deal with the property in the meantime.

The bank argued that if the court did not make that order, even if it won the appeal it might not ever recover the amount owed if the borrowers had already sold the property. The borrowers argued that there was no threat or immediate intention to dispose of the property. However the borrowers had refused to give undertakings to not dispose of the property, or to repay costs.

The appeal judge agreed that the bank had an interest in preserving the property to be able to enforce the mortgage if it was successful in the appeal, and that the only disadvantage to the borrowers was theoretical not actual.

The appeal judge found that there was a risk to the bank that they might not recover their costs if they were successful on the appeal. The appeal judge agreed to stay the original decision until the appeal was decided.

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