Mortgage debt – Substantial arrears – Action for possession against two mortgagors one of whom advancing defence of undue influence – Appropriate form of order to be sought against mortgagor having no defence
Owed substantial arrears, the plaintiff mortgagees brought a county court action for possession against the appellant and his wife who were joint mortgagors of their house. Having found that the defendant was unlikely to be able to pay the amount due within a reasonable period, the court refused to adjourn the proceedings or postpone the date of possession as otherwise empowered by section 36 of the Administration of Justice Act 1970. However the proceedings as against his wife, named as second defendant, were adjourned because she had filed a separate defence, based upon Barclays Bank plc v O’Brien [1944] AC 180, alleging undue influence. An immediate order for possession was made against the appellant alone who appealed contending, inter alia , that it would be invidious to hold a husband in contempt for remaining in a house which his wife was entitled to occupy. The respondent proffered an undertaking not to enforce the order until a like order was made against the wife, or until she left voluntarily.
Held The appeal was dismissed.
