M & J Pty Ltd v Australian & New Zealand Banking Group Ltd [1998] FCA 309

M & J Pty Ltd v Australian & New Zealand Banking Group Ltd [1998] FCA 309

Although the Court accepted for present purposes that there was a serious question to be tried, neither M & J nor Mrs Hunniford offered to pay any amount into court, and the debt relating to the Interlocutory Securities exceeded the value of the properties. In those circumstances there was no reason to depart from the general rule in Inglis, so the Bank should not be restrained from enforcing its mortgage securities.

Jurisdiction
Australia
Judgment Date
27 March 1998
Procedural Posture
Application for Interlocutory Injunction in a Proceeding to Set Aside Securities and Claim Damages for Misleading Conduct / Interlocutory Application Pending Determination of the Proceeding
Outcome
The application for an interlocutory injunction was dismissed.
Legal Topics
['interlocutory Injunction' 'mortgagee Power of Sale' 'payment Into Court' 'unconscionable Conduct' 'misleading and Deceptive Conduct' 'validity of Securities']
['banking and Finance' 'equity' 'trade Practices' 'mortgages and Securities'] ['interlocutory Injunction' 'mortgagee Power of Sale' 'payment Into Court' 'unconscionable Conduct' 'misleading and Deceptive Conduct' 'validity of Securities']

Case Brief

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Procedural Posture

Application for Interlocutory Injunction in a Proceeding to Set Aside Securities and Claim Damages for Misleading Conduct / Interlocutory Application Pending Determination of the Proceeding

Legal Issues

  1. 1 ['Whether the Bank should be restrained by interlocutory injunction from enforcing its powers under the Interlocutory Securities pending determination of the proceeding.' 'Whether the general rule requiring payment of the mortgage debt into court before restraining a mortgagee from exercising security rights should apply where the validity of the securities is challenged.' 'Whether the circumstances justified relaxing the general rule stated in Inglis v Commonwealth Trading Bank of Australia.']

Ratio Decidendi

Although the Court accepted for present purposes that there was a serious question to be tried, neither M & J nor Mrs Hunniford offered to pay any amount into court, and the debt relating to the Interlocutory Securities exceeded the value of the properties. In those circumstances there was no reason to depart from the general rule in Inglis, so the Bank should not be restrained from enforcing its mortgage securities.

Court Disposition

The application for an interlocutory injunction was dismissed.

Orders

  • ['The application for an interlocutory injunction is dismissed.' "The first and third applicants pay the first respondent's costs of the application."]