Ozden v CBA [2013] VSCA 195

The borrower sought to stay the execution of judgment pending hearing of their appeal against the decision in the County Court on the basis of special circumstances. The borrower argued that the family had such sentimental attachment to the home, the children having been born there by home birth, that damages would be inadequate if they were successful in their appeal.  

The Judge found that sentimental attachment alone was insufficient to create special circumstances. His Honour pointed out that special circumstances justifying a stay exist where there is a real risk that it will not be possible for a successful appellant to be restored substantially to his or her former position if the judgment is executed. In this case, the borrower did not point to any material aspects of their home that would be lost if the home was sold and they were obliged to buy or rent another dwelling; nor did they claim that they would be rendered homeless if the house were sold. There was no evidence about their financial position and, in fact, some additional financial interests had not been advised to the Court by “oversight” of the borrower.

The Judge also decided that other factors weighed against a stay, in particular that even if the borrower was successful on appeal, the amount owed would still exceed the value of the property.

The Judge confirmed that the fact a property has special significance to the borrower does not, of itself, justify an order that a lender be prevented from exercising its powers of possession or sale. Special circumstances require some added feature, above sentimental attachment, which was not present in this case and the Judge refused to grant the stay.

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