Australian and New Zealand Banking Group Limited v Fisher

EX TEMPORE Judgment

1. [1]

   This is a notice of motion seeking a stay of a writ of execution issued on 14 July 2014 in respect of certain property mortgaged to the plaintiff by the defendants. The writ depends on a judgment entered by default on 25 May 2014 in favour of the plaintiff against the first defendant.

2. [2]

   It is sought to set aside that judgment upon the basis that there is a defence to part of the claim, namely, in respect of interest. Mr Simpkins, who appears for the first defendant, has candidly conceded that his client has no defence to the claim for repayment of capital. That sums is, I am informed, greater than the value of the property. At all events the property would need to be sold to satisfy the capital debt. It appears, therefore, that there is no point in staying execution of the writ of possession and for that reason the notice of motion must be dismissed.

3. [3]

   Ordinarily, an order for costs would be made against the defendant, however, the bank's position is secured by virtue of the relevant loan agreements and, accordingly, it is unnecessary to make such an order.