Smith v RHG Mortgage Corporation [2009] NSWCA 243

The borrower sought a stay of eviction which was declined by the trial judge. He then appealed to the Court of Appeal. There were three grounds relied on before the trial judge and the Court of Appeal:

  1. The serious ill health of his wife. However there seemed to be no evidence submitted relating to that;
  2. A prospective inheritance from a deceased estate. However nothing to indicate the amount of these monies and nothing to suggest that they could satisfy the outstanding liability to the financier, or any significant part of it was produced;
  3. The borrower claimed he had an entitlement to receive a payment from the Nigerian government for some computer program work he had done. The court was shown certificates referring to an entitlement of Mr Smith to payment of US$29 million. According to Mr Smith, the fee of $5 million had increased due to the accrual of interest.

The trial judge was not persuaded that the borrower had any real prospect of payment of either the sum of $US5 million or $US29 million and refused the stay, notwithstanding the hardship to the wife and in the absence of any evidence concerning the inheritance. 

Before the Court of Appeal the borrower emphasised the seriousness of his wife’s medical condition and referred to his wife being at a point approaching a suicidal condition. He has also said in relation to the amount claimed to be owing by the Nigerian government that he has received an additional document “authorising the release of my funds” and saying that the funds are expected to be released at the next Nigerian Senate Committee. That additional document, was an email from a lawyer in Nigeria. He has not produced a copy of it to the Court saying simply that he did not print it out. As to the inheritance, he said he was not able to indicate how much the inheritance would be. Before the Court of Appeal he also claimed he had commenced negotiations with his to finance the arrears owing to RHG but that additional time would be needed.

Court of Appeal rejected the appeal noting that no error of law had been made by the trial judge.

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