RHG Mortgage Securities v BNY Trust [2009] NSWSC 1011

RHG Mortgage Securities v BNY Trust [2009] NSWSC 1011

Interlocutory injunctive relief was justified because there was a serious question to be tried as to whether BNY had the requisite actual awareness of the January 2009 Event of Default expressly relied on under cl 35.1, a serious question as to whether the meeting could be justified under alternative discretionary powers, and a serious question as to relief against forfeiture. Damages would not be an adequate remedy for likely consequences such as triggered defaults, Elektra was adequately protected by the plaintiffs' undertakings, and the balance of convenience favoured preserving the position until final hearing.

Jurisdiction
Australia
Judgment Date
15 September 2009
Procedural Posture
Equity Division Commercial List Proceeding Concerning Alleged Event of Default in Mortgage Securitisation Transaction / Application for Interlocutory Injunctive Relief
Outcome
Interlocutory injunctive relief granted.
Legal Topics
['event of Default' 'amortisation Event' 'actual Awareness' 'relief Against Forfeiture' 'interlocutory Injunction' 'serious Question to Be Tried' 'balance of Convenience' 'adequacy of Damages' 'security Trustee Powers']
['contracts' 'equity' 'injunctions' 'trusts'] ['event of Default' 'amortisation Event' 'actual Awareness' 'relief Against Forfeiture' 'interlocutory Injunction' 'serious Question to Be Tried' 'balance of Convenience' 'adequacy of Damages' 'security Trustee Powers']

Case Brief

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Procedural Posture

Equity Division Commercial List Proceeding Concerning Alleged Event of Default in Mortgage Securitisation Transaction / Application for Interlocutory Injunctive Relief

Legal Issues

  1. 1 ['Whether there was a serious question to be tried as to whether an Event of Default occurred.' 'Whether there was a serious question to be tried as to whether BNY could rely on powers to call a meeting other than the power specified in the notice.' 'Whether, assuming an Event of Default occurred, there was a serious question to be tried as to whether the plaintiffs would be entitled to relief against forfeiture.' 'Whether damages would be an adequate remedy if BNY exercised its powers and it was later held that there was no default.' "Whether the defendants, particularly Elektra, were adequately protected by the plaintiffs' undertaking as to damages." 'Whether the balance of convenience favoured interlocutory injunctive relief.']

Ratio Decidendi

Interlocutory injunctive relief was justified because there was a serious question to be tried as to whether BNY had the requisite actual awareness of the January 2009 Event of Default expressly relied on under cl 35.1, a serious question as to whether the meeting could be justified under alternative discretionary powers, and a serious question as to relief against forfeiture. Damages would not be an adequate remedy for likely consequences such as triggered defaults, Elektra was adequately protected by the plaintiffs' undertakings, and the balance of convenience favoured preserving the position until final hearing.

Court Disposition

Interlocutory injunctive relief granted.

Orders

  • ['The Court noted that the plaintiffs by counsel gave the usual undertaking as to damages and that the first plaintiff gave the further undertakings set out at [94].' 'Orders were made in accordance with prayers 4 and 5 of the summons filed on 19 August 2009 up until the hearing and determination of the proceedings...