Hargraves Secured Investments v Poole [2012] NSWSC 1612

The lender and the borrower entered into a deed staying a writ of possession for four months to permit the property to be sold or refinanced.

The four months expired and the borrowers sought a further extension  alleging a  “mortgagee in possession” notation in the council records had an adverse effect on the ability to sell the property and that slowness in providing a payout figure had prevented refinancing.

The court found no breach by the lender of the deed given it was not proved that the information came directly from the mortgagee– it could equally have come from a council employee or staff at the sheriff’s office. The court also noted no evidence that alleged tardiness on the part of the mortgagee in providing the pay-out figure adversely impacted any refinancing.

The court held that the interests of justice did not permit the borrowers further time than had already been given to organise their affairs, given a clear agreement had been reached by the parties.

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