Plaintiff borrowed money from Defendant in return for a charge on his house. The money was to be repaid over 10 years in monthly installments.
Plaintiff then lapsed on payments and Defendant sued for possession.
CA found for Plaintiff, but decided to exercise its ability under s.36 to stay possession for a period.
It upheld the judge’s finding that on the peculiar facts, there were two separate agreements: the loan agreement and the mortgage agreement were separate, but that failure to keep up the loan payments led to repossession of the house.
The Court held that a “reasonable time” for Defendant to be allowed to repay outstanding payments under s. 36 AJA was applicable even where the mortgagor was not in default.
It would be manifestly unfair to give s.36 a literal meaning so that it would give help to a mortgagor in default, but not one who is not in default.
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