Hall v Foster [2012] NSWSC 974

Hall v Foster [2012] NSWSC 974

A receiver should not be appointed because the plaintiffs' legal remedies were not inadequate: they could exercise their powers as first registered mortgagees to sell the property, and the risk of the defendants selling or dealing with the property could be addressed by a freezing order. A freezing order was appropriate because there was evidence of a proposed sale to the defendant's brother at an under value and on terms that might put him ahead of unsecured creditors despite serious questions about the enforceability and amount of his mortgage. The order was conditioned on the plaintiffs giving the usual undertaking as to damages; no additional security was required because their first...

Jurisdiction
Australia
Judgment Date
16 August 2012
Procedural Posture
Interlocutory Applications / Amended Notice of Motion Seeking Appointment of a Receiver Pursuant to S 67 of the Supreme Court Act 1970 (nsw), or Alternatively a Freezing Order, in Aid of Enforcement of Judgment
Outcome
Receiver not appointed; freezing order granted upon the plaintiffs giving the usual undertaking as to damages.
Legal Topics
['equitable Execution' 'appointment of Receiver' 'freezing Orders' 'judgment Debt Enforcement' 'mortgagee Sale' 'undertaking as to Damages']
['equity' 'civil Procedure' 'enforcement of Judgments' 'real Property'] ['equitable Execution' 'appointment of Receiver' 'freezing Orders' 'judgment Debt Enforcement' 'mortgagee Sale' 'undertaking as to Damages']

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Procedural Posture

Interlocutory Applications / Amended Notice of Motion Seeking Appointment of a Receiver Pursuant to S 67 of the Supreme Court Act 1970 (nsw), or Alternatively a Freezing Order, in Aid of Enforcement of Judgment

Legal Issues

  1. 1 ["Whether a receiver should be appointed to land owned by the defendants in aid of enforcement of the plaintiffs' judgment." "Whether the Court's power to appoint a receiver for equitable execution is governed by s 67 of the Supreme Court Act 1970 (NSW) or is a separate inherent jurisdiction." 'Whether legal remedies available to the plaintiffs were inadequate.' 'Whether a freezing order should be granted to restrain dealings with the land.' 'Whether the plaintiffs should be required to give the usual undertaking as to damages or provide security for that undertaking.']

Ratio Decidendi

A receiver should not be appointed because the plaintiffs' legal remedies were not inadequate: they could exercise their powers as first registered mortgagees to sell the property, and the risk of the defendants selling or dealing with the property could be addressed by a freezing order. A freezing order was appropriate because there was evidence of a proposed sale to the defendant's brother at an under value and on terms that might put him ahead of unsecured creditors despite serious questions about the enforceability and amount of his mortgage. The order was conditioned on the plaintiffs giving the usual undertaking as to damages; no additional security was required because their first...

Court Disposition

Receiver not appointed; freezing order granted upon the plaintiffs giving the usual undertaking as to damages.

Orders

  • ['Upon the plaintiffs giving the usual undertaking as to damages, the defendants by themselves, their servants or agents, be restrained from encumbering, selling, agreeing to sell, transferring, disposing of or otherwise dealing with land situated and known as Lot 1, Araluen Avenue, Mount Kembla, NSW.']