On 27 March 2025, a creditor entered judgment against a borrower for $1,509,509.02, and for possession of land in Torquay, Victoria. The borrower’s fight to discharge the mortgage was the subject of litigation that concluded with a decision that there was to be no stay on the writ of possession, and a discharge of the mortgage would not be ordered by the court unless all of the money secured by the mortgage was paid (Orde Mortgage Custodian Pty Ltd v Gazzard (No 2) [2026] VSC 202).
Ms Vera Gazzard, the defendant applied to have the judgment set aside. She was partially successful in reducing the debt to a total of $1,445,994.40. A judgment was varied for the lower amount. The court set aside $81,146.52 of the judgment on the basis that Ms Gazzard showed that she had a prime facie defence in respect of the accrued interest, costs and expenses. The judgment for possession was not set aside.
Subject to conditions there was to be argument about the disputed amount at a future time.
Orde continued to take steps to take possession of the property.
Ms Gazzard worked to secure finance to pay out the debt. She approached the court giving evidence that she had secured approval for a loan that was sufficient to pay out the judgment as varied, requesting the court to order that on receipt of the money that Orde discharge its mortgage. She also sought an order that the writ of possession be stayed so that the payout and discharge could occur.
Ms Gazzard argued that to be given a discharge of the mortgage she was required to pay the amounts that were properly due and not any amount that was in dispute. The court rejected this argument. The court did agree that on payment of all money owing under the mortgage Ms Gazzard was entitled to receive a discharge of the mortgage.
On the issue of a stay the court emphasized that Orde should be entitled to the benefit of the judgment without delay and given that the order relating to the discharge of mortgage had been refused there was doubt that the refinance would proceed. On the evidence before the court, it was also not clear that there was an unconditional offer of finance.
Ms Gazzard’s summons was dismissed with the effect that there was no stay on the order for possession