Collins v Campbell [2014] NSWSC 310

The borrowers raised an unjustness defence. In response the lender sought to amend his claim to add a claim for subrogation to the rights of the prior mortgagee and an alternative claim as an equitable mortgagee by reason of the payout of the previous mortgage.

The court permitted the additional claims for the following reasons:

  1. The borrower needs to give credit anyway for the benefit obtained by reason of the previous mortgage being paid out and that does not need to be pleaded by the lender;
  2. There is no prejudice to the borrower if the changes are allowed;
  3. Whilst the changes are sought long after the commencement of the proceedings, a hearing is not just about to take place;
  4. The changes really amount to a different claim in law only; and
  5. The only additional facts relate to the former mortgage being paid out and there are few, if any, disputed facts.

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