HODGEKISS v CHALLENGE BANK [1995] NSWCA 194
As the date for repayment and payment under the mortgage passed, there was default, no tender or attempt to redeem was made, and therefore the mortgagors had no defence against possession. The appeal is hopeless, so no stay should be granted.
- Parties
- Claimants: Mr and Mrs Hodgekiss; Opponent: Challenge Bank
- Jurisdiction
- Australia
- Judgment Date
- 19 August 1995
- Procedural Posture
- Notice of Motion for Stay of Execution / Interlocutory Application Pending Appeal
- Outcome
- Notice of Motion to stay execution dismissed except for a limited stay.
- Legal Topics
- Mortgage Enforcement, Stay of Execution, Possession Proceedings
Case Brief
Summary, issues, holding and outcome
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Parties
Mr and Mrs Hodgekiss
Claimants
Challenge Bank
Opponent
Procedural Posture
Notice of Motion for Stay of Execution / Interlocutory Application Pending Appeal
Legal Issues
- 1 Whether a stay of execution should be granted pending appeal against an order for possession made in favour of the mortgagee
- 2 Whether it is necessary for mortgagors to tender the pay out figure or seek to redeem the mortgage as a defence to possession proceedings
Ratio Decidendi
As the date for repayment and payment under the mortgage passed, there was default, no tender or attempt to redeem was made, and therefore the mortgagors had no defence against possession. The appeal is hopeless, so no stay should be granted.
Court Disposition
Notice of Motion to stay execution dismissed except for a limited stay.
Orders
- Execution on the order for possession is stayed up to and including 6 November 1995 or further order to allow review by a full court.
- Notice of Motion otherwise dismissed.
Full Case Text
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