Pepper Finance v Mackney [2014] NSWSC 196

The lender obtained default judgment. The borrowers failed to have it set aside, but were given at least two months’ to vacate before the writ could be executed. When the lender sought to take possession four months later, the borrowers claimed they did not get any correspondence indicating when the writ of possession would be executed and sought a stay on the basis that they needed to remove their possessions and do some work on the property to improve its value.

The court refused a stay on the basis that the judgment of the court giving possession was a year old, the borrowers on a number of occasions had previously sought to have the judgment set aside and failed, the borrowers knew that the lender was proposing to take possession of the property and had ample time to remove their possessions.

The court said:

Neither the fact that their possessions have not yet been completely packed up and removed, nor their desire to improve the property, is a sufficient basis for the Court to stay the execution of the Writ of Possession.

The court refused any order which required the lender to permit the borrowers to undertake the renovations themselves. The parties failed to reach agreement on supervised access to permit the removal of the borrower’s possessions because the lender wanted an agent present at all times, with the costs borne by the borrowers. The court noted it had no power to impose these conditions and left open the question of whether the lender could be liable to a claim of conversion of those goods if the requirement was found to be unreasonable.

Click here to read the full judgment

Scroll to Top