RHG Mortgage Corporation Ltd v Saunders [2016] NSWSC 1037

RHG Mortgage Corporation Ltd v Saunders [2016] NSWSC 1037

The Court granted interim orders because the proposed appeal points were arguable, though not assessed as having substantial prospects, and the balance of convenience and interests of justice favoured preserving the status quo. The property was a family home with features uniquely valuable to Mr Saunders and his family, while any prejudice to RHG from delaying sale was small and insignificant, particularly given the conditions requiring weekly payments of not less than $500 and expedition of the proposed appeal.

Jurisdiction
Australia
Judgment Date
25 July 2016
Procedural Posture
Notice of Motion in Mortgage Possession Proceedings / Application for Interim Restraint and Stay Pending Application for Leave to Appeal
Outcome
Notice of Motion granted on conditions; plaintiff restrained from dealing with the property and default judgment stayed until further order or final disposition of the application for leave to appeal; costs reserved.
Legal Topics
['stay of Default Judgment' 'interim Restraint on Sale of Mortgaged Property' 'application for Leave to Appeal' 'setting Aside Default Judgment' 'balance of Convenience' 'hardship Notice']
['practice and Procedure' 'mortgage Enforcement' 'credit Law'] ['stay of Default Judgment' 'interim Restraint on Sale of Mortgaged Property' 'application for Leave to Appeal' 'setting Aside Default Judgment' 'balance of Convenience' 'hardship Notice']

Case Brief

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Procedural Posture

Notice of Motion in Mortgage Possession Proceedings / Application for Interim Restraint and Stay Pending Application for Leave to Appeal

Legal Issues

  1. 1 ['Whether the grounds of the proposed application for leave to appeal and appeal were reasonably arguable.' 'Whether the balance of convenience favoured restraining the plaintiff from marketing, selling or otherwise dealing with the property and staying the default judgment pending the proposed appeal.' 'Whether the Court should impose conditions requiring weekly payments and expedition of the proposed appeal.']

Ratio Decidendi

The Court granted interim orders because the proposed appeal points were arguable, though not assessed as having substantial prospects, and the balance of convenience and interests of justice favoured preserving the status quo. The property was a family home with features uniquely valuable to Mr Saunders and his family, while any prejudice to RHG from delaying sale was small and insignificant, particularly given the conditions requiring weekly payments of not less than $500 and expedition of the proposed appeal.

Court Disposition

Notice of Motion granted on conditions; plaintiff restrained from dealing with the property and default judgment stayed until further order or final disposition of the application for leave to appeal; costs reserved.

Orders

  • ['Upon the condition that the defendant pay to the plaintiff on or before midnight on the Tuesday of each week commencing 2 August 2016 a sum of money not less than $500 by depositing cleared funds to the credit of loan account no: 704283367516A.' 'Upon the condition that the defendant take all reasonable steps to...