The lender sought summary judgement for possession on the grounds the borrower’s defence was without substance. The court noted:
The real issue is whether the defence has a real, not fanciful, prospect of success. The lender is required to demonstrate that the outcome of the litigation is so certain, that it would be an abuse of the process of the Court to require the case to proceed to a full hearing on the merits and on the grounds it would be a waste of everybody’s time and money.
The borrowers defence was that the lender paid the surplus from the sale of another property wrongly to another party. The amount complained of was less than the debt the bank was now claiming to be owed. The judge noted that as the bank was only seeking possession, and the defence, even if successful would still leave some of the debt unpaid, the bank was entitled to possession to recover it.