Landa v Perpetual Trustees Victoria [2014] NSWCA 245

The lender was granted possession and the borrower sought a stay pending appeal.

The appeal was reasonably arguable and the court granted a stay on the condition that the borrower pay interest owing on his loan. There was a dispute about the interest rate that applied – the normal or default rate – and whether it should be calculated on the loan amount solely or the loan amount plus capitalised interest. The court decided in favour of the borrower and permitted the lower amount as the price of the stay because the mortgage remains in place until the appeal is heard, the value of the property well exceeded the mortgage debt and the lender had delayed in seeking to execute it writ with no explanation.

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