IMB v Great Wall Resources [2012] NSWSC 612

The lender was granted possession. The mortgagor company was in liquidation. The owner of the mortgagor company applied for yet another stay so that he could repay the loan on behalf of the company. He claimed that he was due to receive a dividend from the liquidator in respect of a claim against the mortgagor company which would enable him to redeem the mortgage.

The court found that even if the owner was entitled to receive a dividend that would not occur for a considerable period.

The highest the owner could put his case was that he believed he would be successful in receiving a substantial dividend out of the liquidation and if he paid out the mortgage, he hoped he would be able to come to an arrangement with the liquidator whereby he would be entitled to the property.

The court held it would be not be appropriate to grant a stay for a further indefinite period likely to exceed seven or eight months based on nothing more than the hope of a successful negotiation. The Court did grant stay for one and a half months on the grounds of hardship, owing to his unexpected illness provided he continued to make interest payments and paid the liquidator’s costs.

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