Perpetual v Dilati [2011] NSWSC 441

The lender obtained a writ for possession, and the occupier (not the borrower) made an application to stay eviction. The occupier was not a party, nor did he seek to be joined, nor did Justice Johnson join him. Nevertheless His Honour had no problem ordering a stay at the request of a non-party.

The occupier claimed he was buying the property in instalments from the borrower and produced documents, some in Arabic and copies of cheques. He gave evidence that he had been seeking alternate dispute resolution with the borrower under Islamic rules.

The judge claimed his decision was to allow the occupier to explore any legal defences he might have, but with respect it is exceedingly obvious that no arrangement between the borrower and the occupier could have any impact on the rights of the lender under its registered mortgage. The real reason seems to have been compassion with the judge noting:

The Occupier states, He lives in the property with his wife and six children and his daughter is due to be married in the next three weeks.

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