GE Mortgage Solutions v Escalante [2012] WASC 377

The borrower defaulted and the lender sought default judgment. The registrar refused because the borrower was only a few hundred dollars in arrears and adjourned the application. The lender appealed.

Master Sanderson found for the lender noting:

It is not for a registrar or a master or a judge to take a position as to the appropriateness or otherwise of a lender seeking to enforce its remedies. The parties have entered into a commercial contract pursuant to which they have rights and liabilities. A lender whose right has accrued because of a breach of the terms of the loan agreement is entitled to enforce its remedies. That was the case here. There was no warrant for adjourning this matter. The plaintiff was entitled to its judgment and it should have had it.

If there were more judges prepared to adhere to the letter of the law like this master there would be more lenders prepared to risk their capital. This is because business thrives on certainty, while capital flees capricious and patchy enforcement of property rights.

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