Hoho Property Pty Ltd v Bass Finance No 37 & Ors [2021] NSWSC 1289

Hoho Property Pty Ltd v Bass Finance No 37 & Ors [2021] NSWSC 1289

Bass was not unreasonable in withholding consent to the sale to OZI Homes given the structure of the offer, the risk of withdrawing property from the market, the insignificant forfeitable deposit, and absence of evidence as to purchaser's capacity to complete. As the plaintiffs' equity is conditional upon repayment of amounts advanced and the balance of convenience does not favour interim restraint, the application for an interim injunction against enforcing mortgage rights is refused.

Parties
First Plaintiff: Hoho Property Pty Ltd; Second Plaintiff: Hoho Top Foods Pty Ltd; Third Plaintiff: Thu Duong Ly; Fourth Plaintiff: Trung Hieu Ho; First Defendant: Bass Finance No 37 Pty Ltd; Second Defendant: Premier Finance Australia Pty Ltd
Jurisdiction
Australia
Judgment Date
11 October 2021
Procedural Posture
Interlocutory Application / Interim Injunction Application Hearing and Determination
Outcome
Plaintiffs' application for interim injunctive relief dismissed; costs to defendants.
Legal Topics
Interim Injunction, Mortgagee Consent to Sale, Unreasonable Withholding of Consent, Sale of Secured Property, Balance of Convenience
Equity Commercial Law Interim Injunction Mortgagee Consent to Sale Unreasonable Withholding of Consent Sale of Secured Property Balance of Convenience

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Parties

Hoho Property Pty Ltd

First Plaintiff

Hoho Top Foods Pty Ltd

Second Plaintiff

Thu Duong Ly

Third Plaintiff

Trung Hieu Ho

Fourth Plaintiff

Bass Finance No 37 Pty Ltd

First Defendant

Premier Finance Australia Pty Ltd

Second Defendant

Procedural Posture

Interlocutory Application / Interim Injunction Application Hearing and Determination

Legal Issues

  1. 1 Whether the defendant mortgagee unreasonably withheld consent to sale on terms negotiated by plaintiffs with proposed purchaser (OZI Homes) under regime established by earlier consent orders
  2. 2 Whether the interim injunction sought preserves the status quo
  3. 3 Whether the balance of convenience favours the granting of an interim injunction restraining Bass from exercising its rights under the finance documents in respect of the Liverpool property

Ratio Decidendi

Bass was not unreasonable in withholding consent to the sale to OZI Homes given the structure of the offer, the risk of withdrawing property from the market, the insignificant forfeitable deposit, and absence of evidence as to purchaser's capacity to complete. As the plaintiffs' equity is conditional upon repayment of amounts advanced and the balance of convenience does not favour interim restraint, the application for an interim injunction against enforcing mortgage rights is refused.

Court Disposition

Plaintiffs' application for interim injunctive relief dismissed; costs to defendants.

Orders

  • Dismiss the plaintiffs' claims for interim relief in prayers 3 and 4 of their notice of motion filed on 31 May 2021.
  • Set aside orders 4, 5 and 6 of the orders made on 7 June 2021 with effect from entry of the new orders.