Parist Holdings Pty Ltd v Perpetual Nominees Ltd [2006] NSWSC 599

Parist Holdings Pty Ltd v Perpetual Nominees Ltd [2006] NSWSC 599

The injunction was refused because, even assuming a more liberal test permitting relief where early refinancing was realistically likely, the plaintiff's evidence did not establish sufficient certainty that BankWest would make a refinancing offer and did not show that any such finance would provide enough money to pay out the mortgage. There was also no evidence that the mortgagee was presently threatening to sell at an undervalue or otherwise acting in breach of duty, and no basis to depart from the general principle that the mortgagee need not disclose proposed sale terms, particularly in light of its undertaking to provide any contract after entry into it.

Jurisdiction
Australia
Judgment Date
18 May 2006
Procedural Posture
Application by a Mortgagor for Injunctive Relief to Restrain the Exercise of a Power of Sale Under a Mortgage / Interlocutory Injunction Application
Outcome
Application dismissed; injunction refused.
Legal Topics
["mortgagee's Power of Sale" 'interlocutory Injunction' 'redemption and Refinance' "mortgagee's Duty in Exercising Power of Sale" 'disclosure of Proposed Sale Terms']
['equity' 'mortgages'] ["mortgagee's Power of Sale" 'interlocutory Injunction' 'redemption and Refinance' "mortgagee's Duty in Exercising Power of Sale" 'disclosure of Proposed Sale Terms']

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Procedural Posture

Application by a Mortgagor for Injunctive Relief to Restrain the Exercise of a Power of Sale Under a Mortgage / Interlocutory Injunction Application

Legal Issues

  1. 1 ["Whether injunctive relief restraining a mortgagee's power of sale could be granted without payment of the mortgage debt or payment into court where the mortgagor asserted a capacity or likelihood of refinancing in the near future." 'Whether an alleged sale at an undervalue or unconscionable conduct by the mortgagee justified injunctive relief.' 'Whether the mortgagee was obliged to disclose to the mortgagor the terms of any proposed sale by private treaty.']

Ratio Decidendi

The injunction was refused because, even assuming a more liberal test permitting relief where early refinancing was realistically likely, the plaintiff's evidence did not establish sufficient certainty that BankWest would make a refinancing offer and did not show that any such finance would provide enough money to pay out the mortgage. There was also no evidence that the mortgagee was presently threatening to sell at an undervalue or otherwise acting in breach of duty, and no basis to depart from the general principle that the mortgagee need not disclose proposed sale terms, particularly in light of its undertaking to provide any contract after entry into it.

Court Disposition

Application dismissed; injunction refused.

Orders

  • ['The application for injunctive relief was dismissed.' "The plaintiff must pay the defendant's costs of the application."]