The lender obtained judgment for possession and the borrowers sought a stay. Both parties agreed to delay sale for 3 months to permit the borrowers to sell and certain conditions were provided for in the settlement letter. The discharge of mortgage was not fully executed by the lender and prevented settlement occurring. It was rebooked but did not go ahead because the purchaser was overseas. A dispute then ensured as to who was responsible for settlement not occurring. The borrowers refused to pay the higher sum provided for and did not settle.
The court found that the lender could not insist on performance on the original date for settlement. However once the discharge properly executed was available, the lender was entitled to insist on settlement. Further, the borrowers had an obligation to bring settlement about if they wanted to avoid the Default Short Minutes of Order being filed. The purchaser’s unavailability was no answer. In that sense their inability to perform the terms of the agreement amounted to a repudiation of the extended arrangement that was provided for in that agreement. There was no indication of when the matter might be able to settle. The borrowers took the view that they could not settle even if the purchaser was available because the lender was insisting on payment of the higher sum. The borrowers were unable to pay that amount even if the purchase went through. The court held the lender entitled to file the Default Short Minutes of Order and recover the full amount owing.
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