Caporale v National Australia Bank [2012] NSWCA 427

The bank obtained judgment for possession of a number of development properties and the developer sought an urgent stay. The bank was owed $11 million and no loan repayments had been made since 2008.

The judge seemed to recognise he might have been the cause of such a hopeless application being made noting:

There are a number of different pieces of litigation between the parties or their associated interests. One was matter where I heard an urgent application for a stay in November 2012 and did in fact grant a stay.

The principal reasons were that it was the actual home of the appellant in this case, and a Writ of Possession was to be executed the next morning and the probabilities were that, even if the Bank was put into possession, the property could not be realised until February 2013.

It seemed to me that, in an urgent application, if one had to err, as one often does in a very urgent application, it was better to err on the side of keeping people in their home over the Christmas/January period.

To prevent a mortgagee in possession from selling, a mortgagor must pay into court the full amount owing bar exceptional circumstances. To grant a stay, there must be reasonable prospects of the appeal being successful.

The court refused a stay on finding there were not reasonable prospects of success on appeal.

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