Secure Funding v West [2013] NSWSC 746

In this matter there had been a writ of possession issued to the lender, but eviction had been stayed for three months to allow the daughter of the borrowers to purchase the security property. The stay was on condition that the borrowers make the minimum monthly loan repayments each month. The borrowers defaulted on the first and third payment, but had paid the second payment. The lender scheduled an eviction and the borrower approached the court to ask for a further stay. It transpired that the daughter’s application for finance had not been processed and a further application had been made.

The judge decided to give leniency to the borrower because:

  • One of the borrowers had been involved in a motor vehicle accident which had caused her significant expense and had left her unable to work for two weeks (the other borrower was on a disability pension);
  • One of the payments had been made on time
  • The borrowers had agreed that they could bring their payments up to date within 7 days.

The judge delayed the execution of the order for possession for 7 days only. His Honour stated that on that day, if the borrowers wished to delay the eviction for a long enough period to organize the daughter’s finance then they would have to bring evidence that they had paid the outstanding payments and also bring documentary evidence of the daughter’s loan application and likely timetable for approval.

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