Prime Capital Securities Pty Ltd v Laperecon Pty Ltd [2012] NSWSC 386

Prime Capital Securities Pty Ltd v Laperecon Pty Ltd [2012] NSWSC 386

Interim restraint was warranted because the defendants established a sufficient apparent entitlement to relief: the only default relied on for the application was alleged failure to pay interest at the higher rate, but the evidence did not clearly show what amount was due on 1 November 2011 or why the defendants should have known higher interest was payable, and debiting the establishment fee, covenant breach fees and higher interest could arguably amount to unconscionable conduct in contravention of the ASIC Act. The balance of convenience favoured preserving the status quo because the purchasers were on notice of the proceedings and the contracts could be terminated without detriment,...

Jurisdiction
Australia
Judgment Date
05 April 2012
Procedural Posture
Proceedings for Possession of Three Properties and for Judgment in a Money Sum, With a Cross Claim Alleging Unconscionable Conduct Under the Australian Securities and Investments Commission Act 2001 (cth). / Interlocutory Application by the Defendants for Interim Relief Restraining Sale of Security Properties and Enforcement Steps Pending Determination of the Cross Claim.
Outcome
Plaintiff restrained until further order from selling security properties as mortgagee and from taking further enforcement action other than maintaining the proceedings; costs reserved.
Legal Topics
['mortgagee Sale' 'possession of Land' 'interlocutory Injunction' 'unconscionable Conduct' 'asic Act' 'balance of Convenience' 'prima Facie Case']
['mortgages' 'equity' 'civil Procedure' 'consumer Protection and Financial Services Regulation'] ['mortgagee Sale' 'possession of Land' 'interlocutory Injunction' 'unconscionable Conduct' 'asic Act' 'balance of Convenience' 'prima Facie Case']

Case Brief

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Procedural Posture

Proceedings for Possession of Three Properties and for Judgment in a Money Sum, With a Cross Claim Alleging Unconscionable Conduct Under the Australian Securities and Investments Commission Act 2001 (cth). / Interlocutory Application by the Defendants for Interim Relief Restraining Sale of Security Properties and Enforcement Steps Pending Determination of the Cross Claim.

Legal Issues

  1. 1 ["Whether the defendants had a sufficiently apparent entitlement to relief under the ASIC Act to justify interim restraint of the plaintiff's proposed sales of the security properties." 'Whether the balance of convenience favoured preserving the status quo pending determination of the cross-claim.' "Whether the plaintiff's administration of the loan, including debiting higher interest and fees, could support an arguable claim of unconscionable conduct."]

Ratio Decidendi

Interim restraint was warranted because the defendants established a sufficient apparent entitlement to relief: the only default relied on for the application was alleged failure to pay interest at the higher rate, but the evidence did not clearly show what amount was due on 1 November 2011 or why the defendants should have known higher interest was payable, and debiting the establishment fee, covenant breach fees and higher interest could arguably amount to unconscionable conduct in contravention of the ASIC Act. The balance of convenience favoured preserving the status quo because the purchasers were on notice of the proceedings and the contracts could be terminated without detriment,...

Court Disposition

Plaintiff restrained until further order from selling security properties as mortgagee and from taking further enforcement action other than maintaining the proceedings; costs reserved.

Orders

  • ['That the plaintiff be restrained, until further order, from taking any further steps in relation to the sale of any of the properties the subject of the present proceedings; and from taking any further action, other than the maintenance of the present proceedings, to enforce the debt claimed in the statement of...