Powers v Hall [2013] NSWSC 1356

The lender obtained default judgment for possession. The borrower sought to have it set aside to prevent sale on the basis of a doubtful proposal that someone else would assume the obligations subject to various conditions and a contracts review act defence.

The court found that even on the borrower’s best case, he would still owe over $1.5m and would still be in default because on its best case, any variation of the security would not affect the lender’s right to possession or the right to exercise a power of sale. The court found that the borrower had no basis for staying the exercise of the power of sale and noted as follows:

What the borrower puts forward to this Court is a request that it make a commercial judgment as to whether the proposal is something that should be taken but this is not a matter for the Court – it is a matter for the lender.

The court also noted a realistic prospect of harm to the lenders’ security if the sale was delayed. The application was dismissed.

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