Big Kahuna Holdings v Kitas (No 2) [2012] NSWSC 858

Judgment had previously been given in this case that the mortgage, which a sister had been pressured by her brother into signing, was unjust. The court held her liable to repay the principal but reduced the interest rate on the debt. The sister applied to have the hearing re-opened on the basis that the court had improperly exercised its discretion. The sister argued that the judge had focused on the sister’s responsibility, not the lender’s responsibility. The sister also sought to have the interest payable suspended for the period of delay in the proceedings allegedly caused by the lender.

The judge refused to re-open the case on the basis that it was not appropriate for a judge to hear an appeal against its own decision. The court found that the lender should not be punished by being deprived of interest on account of any delay on its part. The court ordered the lender to pay 70% of the sister’s costs up to the date of trial taking account of the fact that she succeeded in her application but did not obtain all the relief sought and 40% thereafter, given the lender had made an offer to accept reduced interest on the loan.

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