The borrowers applied for a stay of a writ of possession in respect of their home pending their application for special leave to appeal to the High Court.
The grant of a stay pending appeal requires extraordinary circumstances and the following matters are relevant:
- whether it is likely that leave to appeal will be granted;
- whether the stay will cause loss to the lender; and
- where the balance of convenience lies.
The court noted that the hardship of moving from one’s family home is not sufficient to warrant a stay. The court found no extraordinary circumstances. The court also found no substantial prospect of leave being granted because the appeal concerned essentially factual matters and the real possibility of loss to the lender through delay. The court also found that the balance of convenience favoured the lender given their risk of loss and noted that the risk of eviction for borrowers is always assumed when borrowers make their home available as security for loans.
The court refused a stay.
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