This was an application to injunct the power of sale, to grant leave to sue the lender’s solicitor and barrister and to set aside a consent judgement order. The trouble began when the borrowers defaulted under their mortgage and the lender commenced proceedings for possession were instituted. A Defence was filed which alleged that the loan was subject to the Consumer Credit Code and that it had not been complied with.
The lender took the view the Defence was without merit and filed a Notice of Motion for summary judgment. At the hearing there was a consent judgement for possession entered into whereby the borrowers agreed to a schedule of payments, and the lender was at liberty to enforce that judgment for possession if the payments were not made. The borrowers did default, and a Writ of Possession was issued.
The borrowers then sought to set aside the consent judgement. This was refused and that decision was taken to the Court of Appeal, and the borrowers in the meantime made an interlocutory application to the Court of Appeal to stay the Writ of Possession. The Court of Appeal refused the stay and the borrower’s then brought the current application.
Justice Palmer, in relation to the proposed proceedings against the lender’s legal representatives, commented:
Having read that affidavit, I can see nothing whatsoever in it to justify a complaint of any form of misconduct of deceptive behaviour either on the part of Mr Carter or Mr Young. I think that Mr Singh, with respect, has misunderstood what Adams J said in advising the solicitors for the mortgagee to write to the Law Society about the pro bono application of Mr and Mrs Singh. All that his Honour suggested was that they write in order to inform the Law Society that if pro bono assistance were given then the Law Society should inform the mortgagee plaintiff of that position as soon as possible. In those circumstances, there is no basis which I can see for granting the application to stay the auction, or for grant of any of the other relief which is sought in the Summons.