National Australia Bank Ltd v Hunwick

The case involved a dispute between the National Australia Bank Ltd, the plaintiff, and two defendants, Hunwick, who were the owners of certain land as tenants in common. The dispute arose from a mortgage taken out by the defendants on the land, which the plaintiff sought to enforce. The plaintiff obtained a default judgment against the defendants, leading to a writ of possession. One of the defendants, Hunwick, applied to stay the execution of the writ of possession, claiming delay on the part of the plaintiff in obtaining the judgment. The application was made nine months after the default judgment was entered, despite the applicant being represented by lawyers throughout the proceedings. The court was required to determine whether the delay was sufficient to warrant a stay of execution and whether the principles in Collier v Morlend Finance applied to the circumstances.

The court considered whether the delay in obtaining the judgment was unreasonable and whether the applicant had a valid reason for the delay. The court noted that the applicant had knowledge of two prior applications made by the other occupier to the knowledge of the applicant, and that there was no explanation for the delays. The court also considered the principle in Collier v Morlend Finance, which states that where one mortgagee pays out a prior mortgagee, the subsequent mortgagee is not entitled to priority unless the payment was made with the consent of the prior mortgagee or the circumstances are such that the subsequent mortgagee is entitled to priority. The court found that the applicant had not offered to pay out the sum paid to the prior mortgagee and that the delay was unreasonable.

The court refused the application to stay the execution of the writ of possession, finding that the delay was unreasonable and that the applicant had not provided a valid reason for the delay. The court noted that the judgment against the other defendant was not sought to be disturbed. The court held that the principles in Collier v Morlend Finance did not apply to the circumstances of the case, as the applicant had not offered to pay out the sum paid to the prior mortgagee. The court found that the applicant had not demonstrated any circumstances that would warrant a stay of execution of the writ of possession.

The final orders of the court were that the application to stay the execution of the writ of possession be refused, and that the writ of possession remain in force. The court did not make any orders as to costs.