CBA v Tallents [2014] WASC 218

The bank obtained default judgment against the defaulting borrowers. One of the borrowers sought a suspension order on the basis that the borrowers agreed with the bank an arrangement to deal with arrears but the bank did not inform them about the increased level of repayments they were supposed to make. The bank did inform the borrowers by letter what they needed to do to bring the loan into order and service it. The borrowers denied receiving the letter.

The court has the power to make a suspension order if there are special circumstances that justify it and such circumstances may take account of hardship, the balance of convenience and what is just. In a mortgage action, the general rule is that a stay will not be granted where the mortgage debt has not been paid or paid into court.

The court noted that the bank had exercised considerable patience and given the borrowers ample opportunity to regularise their repayments under the loan. The court found no special circumstances taking the case outside the normal range of mortgage default and repossession cases. However the court did consider it just to suspend enforcement until the end of the next month to allow the borrowers time to find alternative accommodation.

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