AT Air Group Pty Limited v Dieter Siewert (No 3) [2014] NSWSC 1129

AT Air Group Pty Limited v Dieter Siewert (No 3) [2014] NSWSC 1129

The plaintiffs' default under the undertaking concerning outgoings and liabilities was a sufficient change of circumstances to justify reconsideration of the interlocutory regime, but not an automatic basis for setting the injunction aside ex debito justitiae. Because National Australia Bank appeared likely to recover possession and sell the property, and because the defendants had no present intention or concrete proposal to sell, the balance of convenience favoured maintaining the restraint while allowing the third plaintiff to sell the property by public auction on terms preserving the net proceeds pending the determination of the proceedings.

Jurisdiction
Australia
Judgment Date
31 July 2014
Procedural Posture
Interlocutory Applications / Notices of Motion Concerning Interlocutory Injunctions, Caveat, Undertakings and Sale of Property
Outcome
Defendants' notice of motion filed on 18 July 2014 dismissed; third plaintiff's motion filed on 28 July 2014 otherwise dismissed; no order as to costs; ancillary orders made concerning withdrawal of caveat, sale of the property and release from undertakings.
Legal Topics
['interlocutory Injunctions' 'variation and Discharge of Orders' 'change of Circumstances' 'balance of Convenience' 'caveats' 'mortgagee Possession and Sale']
['civil Procedure' 'equity' 'corporations' 'real Property'] ['interlocutory Injunctions' 'variation and Discharge of Orders' 'change of Circumstances' 'balance of Convenience' 'caveats' 'mortgagee Possession and Sale']

Case Brief

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Procedural Posture

Interlocutory Applications / Notices of Motion Concerning Interlocutory Injunctions, Caveat, Undertakings and Sale of Property

Legal Issues

  1. 1 ['Whether the injunction restraining the defendants from transferring the property should be discharged because a condition on which it was granted subsequently failed.' 'Whether the application should be treated as requiring the injunction to be set aside ex debito justitiae or as requiring reconsideration because of a sufficient change of circumstances.' 'Where the balance of convenience lay after National Australia Bank commenced possession proceedings and appeared likely to conduct a mortgagee sale.' 'Whether the third plaintiff should be relieved from undertakings and permitted to list and sell the property by public auction.']

Ratio Decidendi

The plaintiffs' default under the undertaking concerning outgoings and liabilities was a sufficient change of circumstances to justify reconsideration of the interlocutory regime, but not an automatic basis for setting the injunction aside ex debito justitiae. Because National Australia Bank appeared likely to recover possession and sell the property, and because the defendants had no present intention or concrete proposal to sell, the balance of convenience favoured maintaining the restraint while allowing the third plaintiff to sell the property by public auction on terms preserving the net proceeds pending the determination of the proceedings.

Court Disposition

Defendants' notice of motion filed on 18 July 2014 dismissed; third plaintiff's motion filed on 28 July 2014 otherwise dismissed; no order as to costs; ancillary orders made concerning withdrawal of caveat, sale of the property and release from undertakings.

Orders

  • ["The defendants withdraw caveat AG571747 in respect of folio identifier 2/SP55795 upon completion of the sale of that property by the National Australia Bank, or by the third plaintiff, provided that upon handing over the withdrawal of caveat the net proceeds of sale after payment of the amounts required to...