Suncorp Metway v Gonfanon [2014] NSWSC 197

The borrower arranged for his company to purchase the property from the second mortgagee which exercised its power of sale but the purchase was delayed owing to the hospitalisation of one of the directors of the second mortgagee.

The court noted that the physical presence of the director did not seem either reasonable or rational, when its solicitors could be instructed to attend to settlement. Nevertheless the court found that the hold up could not be laid at the feet of the first mortgagee or the borrower, who had funding in place.

The court granted the stay on the basis of the following:

  1. The first mortgagee would have its first mortgage discharged including all interest;
  2. If a stay were not granted, there would be considerable disruption for the borrower’s family;
  3. There was a real risk of litigation between the first and second mortgagees, and the borrower, if a stay were not granted.

The court cautioned:

No party should expect that the Court will continue to grant an extension of time. The Court ordinarily does not extend time for Writs to be executed, and if any further extension is necessary, proper evidence of the reasons for the delay and the reasons for the extension should be filed and put before the Court.

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