Duckworth v CBA [2013] WASCA 24

The lender obtained summary judgment for $3 million and orders for possession. The borrower sought a stay.

A stay requires proof of a reasonable prospect of successfully appealing from the judgment . In addition in a mortgage action, the general rule is that a stay will not be granted in circumstances where the mortgage debt has not been paid into court.2

The borrower’s only argument was that he was due to be repaid a $3 million bond by the water board. The judge found this unlikely and noted that he was bankrupt. Further the court found no reasonable prospects of a successful appeal given no case had been put forward.

The court also noted that the fact that the judgment sum plus interest now exceeded the value of the property, thus the balance of convenience was in the lender’s favour.

The court refused the stay.

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