First National Bank v Achampong [2004] 1 FCR 18

• X and Defendant (married) took out a mortgage loan. X had used undue influence against Defendant so that when X absconded and defaulted, it was only X’s share that the bank, Plaintiff, had acclaim to.

• Plaintiff sued Defendant for possession and sale of the house, and the CA granted it, using its discretion under the 1996 Act.

• The fact that Defendant’s grandchildren and disabled child were living at the house might delay the sale but were not enough to prevent it. 

Blackburne J

the effect of refusing an order for sale is to condemn the bank to wait – possibly for many years – until D should choose to sell before the bank can recover anything. In the meantime the debt continues to increase.

• He also says that in exercising his discretion, he did not think it relevant that the bank had not tried to pursue X, since he was now in Ghana and the bank had no means of pursuing him.

• There seem only two ways in which an order for sale can be resisted under the 1996 act:

  1. Where the buyer can afford to buy out the bank over time (will be rare), and

  2. Non-financial reasons under s.15 (1) (a-c) and other hardship reasons.

• (2) should only be used to defer, not deny sale, lest lenders will simply proceed on insolvency grounds. This is scant protection.