The Supreme Court has refused an application to stop the Bank of Queensland selling up a Wavell Heights home pending the appeal against the bank’s default judgement by a sick customer with no alternative accommodation.

The legal blog site Take the law…. has today reported that Marianne Morel - who says the banks letter sending a Statement of Claim never arrived and produced confirmation from Australia Post that it had, in the same week as the BOQ letter was sent, returned to sender a registered post item intended for her.
“Morel says she never received the bank’s letter or had any idea of the court action and argued that the item returned to sender by Australia Post must have been the solicitor’s letter and probably was incorrectly addressed or had insufficient postage”, reports the blog.

Bank of Queensland’s solicitor filed in the court an affidavit of service claiming that she “caused the letter to be forwarded by pre-paid post”, but didn’t refer to how this occurred, what address was on the front of the envelope or the value of postage affixed to it.

“Self-represented on her stay of execution application pending her appeal to set aside the default judgment Morel relied on an almost identical previous Queensland ruling which favoured her argument”.

But Fraser JA did not think Morel’s plight to be of the same consequence as a company in a debt dispute.

Referring to the earlier ruling in 2009, he said “That case concerned a statutory demand, the consequences of failure to comply with which are very serious including deemed insolvency”.

“Without proof of such significant prejudice as justifies depriving the bank of the fruits of the litigation in which it has succeeded to date”, the stay application was refused.

Notwithstanding that he refused the stay until hearing of the appeal Judge Fraser went on to rule “In view of the evidence of the applicant’s poor health and the considerable pressure on and having no alternative accommodation, I am prepared to grant a further short 7 day stay”.