Raffaele Iaconis & Anor v Gregory David Pynt & Anor [2008] NSWSC 781

Raffaele Iaconis & Anor v Gregory David Pynt & Anor [2008] NSWSC 781

There is no serious question to be tried that the s 57(2)(b) notice was invalid or misleading, nor that the mortgagee acted with reckless disregard to the mortgagor's interests in the sale; damages are an adequate remedy and the balance of convenience does not favour interlocutory restraint of completion of the sale.

Parties
First Plaintiff: Raffaele Iaconis; Second Plaintiff: Angelina Iaconis; First Defendant: Gregory David Pynt; Second Defendant: Burbot Properties Pty Ltd
Jurisdiction
Australia
Judgment Date
16 July 2008
Procedural Posture
Interlocutory Application / Ex Tempore Judgment on Interlocutory Injunction
Outcome
Application for interlocutory relief dismissed
Legal Topics
Mortgages, Power of Sale, Statutory Notice Requirements, Adequacy of Damages, Equity of Redemption
Property Law Equity Mortgage Law Mortgages Power of Sale Statutory Notice Requirements Adequacy of Damages Equity of Redemption

Case Brief

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Parties

Raffaele Iaconis

First Plaintiff

Angelina Iaconis

Second Plaintiff

Gregory David Pynt

First Defendant

Burbot Properties Pty Ltd

Second Defendant

Procedural Posture

Interlocutory Application / Ex Tempore Judgment on Interlocutory Injunction

Legal Issues

  1. 1 Whether formal defects in a s 57(2)(b) notice under the Real Property Act 1900 invalidate the exercise of power of sale by mortgagee
  2. 2 Whether the conduct of the mortgagee in agreeing to the sale price amounted to reckless disregard of the mortgagor's interests
  3. 3 Whether damages are an adequate remedy and the balance of convenience favours the grant of interlocutory relief

Ratio Decidendi

There is no serious question to be tried that the s 57(2)(b) notice was invalid or misleading, nor that the mortgagee acted with reckless disregard to the mortgagor's interests in the sale; damages are an adequate remedy and the balance of convenience does not favour interlocutory restraint of completion of the sale.

Court Disposition

Application for interlocutory relief dismissed

Orders

  • The application for interlocutory relief is dismissed.
  • Plaintiffs to pay the defendants' costs of the application.