Perpetual Trustee Company Ltd v Paola [2010] NSWSC 997

Perpetual Trustee Company Ltd v Paola [2010] NSWSC 997

The cross-claimants did not prove on the balance of probabilities that Perpetual had acted unreasonably or unconscionably in withholding or delaying consent, because Perpetual had legitimate unresolved concerns affecting its security interest and the value of the property. Specific performance compelling consent was inappropriate because the leases were still being negotiated and would require the Court to supervise reasonable terms. No present damages or equitable compensation arose because no damage would be suffered until the power of sale was exercised.

Jurisdiction
Australia
Judgment Date
03 September 2010
Procedural Posture
Cross Claim Seeking Mortgagee Consent to Proposed Leases, Registration of Leases, Injunction or Specific Performance, and Damages or Equitable Compensation / Principal Judgment on the Cross Claim After Default Judgment and Stays of a Writ of Possession
Outcome
The Cross-Claim is dismissed.
Legal Topics
['duty of Mortgagee on Sale' 'mortgagee Consent to Leases' 'unconscionable Conduct' 'specific Performance' 'damages']
['mortgage Law' 'property Law' 'equity' 'consumer Protection'] ['duty of Mortgagee on Sale' 'mortgagee Consent to Leases' 'unconscionable Conduct' 'specific Performance' 'damages']

Case Brief

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Procedural Posture

Cross Claim Seeking Mortgagee Consent to Proposed Leases, Registration of Leases, Injunction or Specific Performance, and Damages or Equitable Compensation / Principal Judgment on the Cross Claim After Default Judgment and Stays of a Writ of Possession

Legal Issues

  1. 1 ['Whether Perpetual was required to consent to the granting and registration of proposed leases over the mortgaged property.' 'Whether Perpetual acted unreasonably, unconscionably or otherwise in bad faith by refusing or delaying consent to the proposed leases.' 'Whether the Court should order specific performance or injunctive relief compelling Perpetual to consent to and register the proposed leases.' 'Whether damages or equitable compensation were presently available.']

Ratio Decidendi

The cross-claimants did not prove on the balance of probabilities that Perpetual had acted unreasonably or unconscionably in withholding or delaying consent, because Perpetual had legitimate unresolved concerns affecting its security interest and the value of the property. Specific performance compelling consent was inappropriate because the leases were still being negotiated and would require the Court to supervise reasonable terms. No present damages or equitable compensation arose because no damage would be suffered until the power of sale was exercised.

Court Disposition

The Cross-Claim is dismissed.

Orders

  • ['The Cross-Claim is dismissed.']