Harvey v Perpetual Nominees Ltd [2009] NSWSC 1379

Harvey v Perpetual Nominees Ltd [2009] NSWSC 1379

The evidence before the Court did not establish a seriously arguable right to an interlocutory injunction restraining completion of the sale, particularly in light of the lack of an unconditional offer to redeem the mortgage and the rights of a bona fide purchaser having intervened. The balance of convenience lay against granting injunctive relief.

Jurisdiction
Australia
Judgment Date
02 December 2009
Procedural Posture
Application for Interlocutory Injunction / Interlocutory
Outcome
Application for interlocutory injunction denied
Legal Topics
['mortgages' 'exercise of Power of Sale' 'injunction' 'equity of Redemption' 'receivers and Managers']
['equity' 'corporations'] ['mortgages' 'exercise of Power of Sale' 'injunction' 'equity of Redemption' 'receivers and Managers']

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Procedural Posture

Application for Interlocutory Injunction / Interlocutory

Legal Issues

  1. 1 ['Whether plaintiffs are entitled to an interlocutory injunction restraining mortgagees and receivers from completing a sale to a bona fide purchaser after auction' 'Whether mortgagee or receivers breached duties in conduct of sale under mortgage and Corporations Act s 420A' 'Whether equity should protect the equity of redemption in the circumstances']

Ratio Decidendi

The evidence before the Court did not establish a seriously arguable right to an interlocutory injunction restraining completion of the sale, particularly in light of the lack of an unconditional offer to redeem the mortgage and the rights of a bona fide purchaser having intervened. The balance of convenience lay against granting injunctive relief.

Court Disposition

Application for interlocutory injunction denied

Orders

  • ['Paragraphs 6 and 9 of the Originating Process, so far as they seek interlocutory injunctive relief, are dismissed' "The defendants' costs of this application are the defendants' costs in the proceedings" "The remainder of the Originating Process is stood over to the Registrar's Corporations List on 14 December 2009"]