National Australia Bank Limited v Mary Rose Salubre

The case of National Australia Bank Limited versus Mary Rose Salubre was heard in the Federal Circuit Court of Australia. The bank, as the mortgagee, sought an order for possession and sale of a property owned by Ms Salubre, who was the registered proprietor. The property was one of three owned by Ms Salubre, and the bank's application was made in the absence of a draft defence. The court was required to decide whether to grant the application for possession and sale despite the absence of a draft defence and the fact that the property was one of three, with imminent eviction potentially affecting only one of them.

The court considered the urgency of the bank's application for possession and sale, given the risk of Ms Salubre being left homeless if the order was made. It also had to weigh the bank's rights as mortgagee against the potential hardship to Ms Salubre. The court held that, in the absence of a draft defence, the application for possession and sale could not be determined on its merits. However, the court found that the bank's rights as mortgagee outweighed the potential hardship to Ms Salubre, given the imminent risk of eviction and the fact that only one of her three properties was affected.

The court concluded that the application for possession and sale should be stayed until a draft defence was provided by Ms Salubre. The court emphasised that this decision was not a determination of the merits of the bank's claim, but rather a procedural ruling based on the absence of a draft defence. The court ordered that the application for possession and sale be stayed until a draft defence was provided or until further order of the court.