JP Morgan v Bridge [2013] NSWSC 668

The lender had successfully obtained a writ of possession. The borrower had not filed any defence in those proceedings. However after execution of the writ, the borrower re-entered the property and remained in possession. The lender asked the court for a writ of restitution which the borrower opposed on the basis that the order for possession was not valid because the loan was unfair and had been advanced by the lender without concern for whether he could meet the repayments due.

The judge confirmed that in suitable cases the Court has power to grant a stay of execution of a judgment, even where a writ has issued and steps have been put in place in anticipation of executing it. However, once the writ for possession has been executed and practical effect given to the order of the Court, then the borrower cannot contest the validity of the judgment that led to the writ of possession being issued. The judge stated that the borrower’s rights at such a point are limited to his right “to expect the lender to conduct the sale of the property in a proper manner and to account to him in accordance with its obligations as a mortgagee.”

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