Lava v Avery [2009] NSWSC 177

In this case the borrower filed a defence claiming the loan had been paid out and filed a cross-claim seeking that a discharge be provided. On the day of the trial the borrower advised she was withdrawing the defence and cross-claim and would not resist possession orders. However because she proposed to refinance with the Commonwealth Bank she sought an adjournment sufficient to the refinance to take place. The adjournment sought was lengthy because she had a second mortgage which she also claimed was paid back or secured nothing and needed time to bring redemption proceedings.

The judge refused the adjournment and instead treated the application as a stay application. Accordingly a writ of possession was ordered and the writ stayed for 6 months. The lender proposed a condition of the stay be that arrears of interest be paid but this was refused. The judge based his decision to grant such a lengthy stay upon the fact the value of the property made it unlikely the lender would suffer a shortfall.

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