HODGEKISS v CHALLENGE BANK [1995] NSWCA 194

HODGEKISS v CHALLENGE BANK

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

POWELL JA 19 August 1995

[1995] NSWCA 194

Powell JA By Notice of Motion filed 29th September last, the Claimants ("Mr and Mrs Hodgekiss") seek an order that execution upon a judgment for possession, the entry of which was ordered by Young J, sitting in the Equity Division, on 28th August 1995, be stayed pending further order - one assumes, until the determination of the appeal in this matter - the Notice of Appeal in which was filed on 22nd September last.

The circumstances which gave rise to the proceedings before Young J are that, in March 1990, Mr and Mrs Hodgekiss granted to the Opponent ("the Bank") a mortgage over a property at Woodside Avenue, Strathfield ("the subject property"), of which property they are registered as proprietors, for the purpose of securing the repayment, and payment, of a loan of $603,000.00, interest and other charges provided for in the mortgage.

By late 1993, as it would seem, the mortgage was in default and there was served on the Claimants a notice requiring the payment of the full amount of the debt then outstanding - in order that such a notice might be served on Mr and debt then outstanding - in order that such a notice might be served on Mr and Mrs Hodgekiss, there must earlier have been served on them a notice pursuant to the provisions of s.57(2)(b) of the Real Property Act 1900. Had the repayment of the loan not been accelerated, it would not have been repayable until March of the loan not been accelerated, it would not have been repayable until March 1995.

It would appear that, during the course of the following 12 months, or so, there was considerable correspondence between Mr and Mrs Hodgekiss, or their advisers, on the one hand, and the Bank, or its advisers, on the other, directed to having the loan discharged, or refinanced, during the course of which correspondence it became apparent that the parties did not agree (inter alia) as correspondence it became apparent that the parties did not agree (inter alia) as to the amount which was then due under the mortgage. to the amount which was then due under the mortgage.