National and Provincial Building Society v Lloyd
| Jurisdiction | England & Wales |
| Judgment Date | 06 December 1996 |
| Date | 06 December 1996 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Before Lord Justice Neill and Mr Justice Bennett
Mortgaged property - power to suspend possession order
Section 36 of the Administration of Justice Act 1970, as amended by section 8 of the Administration of Justice 1973, empowered a court in the exercise of its discretion, to suspend an order for the possession of mortgaged property, if there was sufficient evidence to lead the court to the conclusion that the mortgagor was likely to be able to pay any sums due under the mortgage within a reasonable period. The question of a reasonable period was a matter for the court in each individual case.
The Court of Appeal so stated allowing an appeal by the plaintiff, the National and Provincial Building Society, against the decision of Judge McKinney who, at Bournemouth County Court on May 15, 1995, had suspended an order for possession of mortgaged property made by a district judge against the defendant, Geoffrey William Lloyd.
Mr Ali Malek for the plaintiff; Mr Patrick Hamlin for the defendant.
LORD JUSTICE NEILL said that the judge concluded that section 36 of the 1970 Act, as amended by section 8 of the 1973 Act, applied to the present case. Against that decision the plaintiff appealed. The plaintiff made two main submissions.
First, it was said that the deferment which was allowed for the sale of a property which was the subject of a mortgage was limited so that only a short time was allowed for the sale to be completed because such a sale, in effect, destroyed the security.
Second, it was said that on the facts of the present case, there was not sufficient evidence to have entitled the judge to make the finding that she did.
In support of the first submission, the plaintiff argued that the authorities established that an order for possession of mortgaged property should only be deferred to allow a mortgagor time to sell such property where the prospects of an early sale were best served by allowing a mortgagor time and, furthermore, the authorities established that any such deferment should be short.
It was true that both at common law and in the more recent cases since the enactment of section 36 of the 1970 Act, it had been said that in the case of the sale of mortgaged property the adjournment...
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