Secure Funding v Coughlin [2009] NSWSC 384

In this case the lender obtained judgement and a writ of possession. Immediately prior to eviction the alleged occupiers sought an injunction to set aside the judgement and writ on the basis that the loan subject to the Farm Debt Mediation Act. The application was brought by the alleged occupiers because the borrower was bankrupt.

The alleged occupiers were the children of the borrower and lived in the property in that capacity. The Court had to determine whether they had any standing to bring the application as occupiers for the purpose of the rules. The Court ultimately decided that the general rule is that “wives, children, servants, friends and visitors of tenants or under tenants” are not considered occupiers. Accordingly the children had no standing as occupiers to seek the injunction.

The children next argued that they did not need any particular standing and that “even a stranger would have standing to challenge the lender’s alleged failure to adhere to its obligations under the Farm Debt Mediation Act.” This was rejected, however, the judge held that the fact they were persons living in the house seeking to avoid eviction established “impending detriment” which gave them standing beyond that of the other members of the public. Accordingly he ordered that they be joined to the proceedings.

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