Elnic Holdings Pty Ltd v New Wave Development (NSW) Pty Ltd [2005] NSWSC 1226

Elnic Holdings Pty Ltd v New Wave Development (NSW) Pty Ltd [2005] NSWSC 1226

Purchasers from a mortgagor (or those claiming through the mortgagor) are not entitled in equity to restrain a mortgagee from exercising its power of sale or require it to marshal its securities in the applicants' favour, unless they pay the amount due to the mortgagee or bring the full debt into court. The prior mortgagee retains the right to choose which security it enforces first and equity will not restrain that right in similar circumstances.

Jurisdiction
Australia
Judgment Date
12 September 2005
Procedural Posture
Application for Interim Injunction, Equity Division / Application for Interim Relief (injunction) – Ex Tempore Judgment
Outcome
Application for interim relief dismissed.
Legal Topics
['mortgages' 'injunctions' 'doctrine of Marshalling' 'power of Sale']
['equity' 'property Law'] ['mortgages' 'injunctions' 'doctrine of Marshalling' 'power of Sale']

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Procedural Posture

Application for Interim Injunction, Equity Division / Application for Interim Relief (injunction) – Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the mortgagee (Eclipse) should be restrained by injunction from exercising its power of sale over units 3 and 7.' 'Whether purchasers from the mortgagor (Elnic and the Lees) can require the mortgagee to first sell other secured properties (units 10 and 12) or marshal securities in their favour.' 'Whether the court should order the withdrawal of competing caveats lodged by other defendants.']

Ratio Decidendi

Purchasers from a mortgagor (or those claiming through the mortgagor) are not entitled in equity to restrain a mortgagee from exercising its power of sale or require it to marshal its securities in the applicants' favour, unless they pay the amount due to the mortgagee or bring the full debt into court. The prior mortgagee retains the right to choose which security it enforces first and equity will not restrain that right in similar circumstances.

Court Disposition

Application for interim relief dismissed.

Orders

  • ['Order that the application for interim relief be dismissed.' "Order that the plaintiffs pay the defendants' costs of the application for interim relief." "Note the plaintiffs' undertaking given to the court." 'Note that such undertaking is without prejudice to any in personam claim regarding sale proceeds.' 'Grant...