Steven Murabito & Ors v Ageist Pty Ltd [2021] NSWSC 1102

Steven Murabito & Ors v Ageist Pty Ltd [2021] NSWSC 1102

The Summons was dismissed because the Plaintiffs' own counsel accepted that the affidavits did not support interlocutory relief, the Plaintiffs failed to establish a prima facie case or serious question justifying restraint of the sale, and further discretionary factors including significant self-induced delay, repeated prior unsuccessful caveat claims and orders restraining further caveats, prejudice to Ageist and the bona fide purchaser, lack of evidence affecting PTAL's entitlement to enforce its mortgage, unresolved and unsupported National Credit Code arguments, and absence of evidence giving value to the undertaking as to damages all weighed against injunctive relief.

Jurisdiction
Australia
Judgment Date
24 August 2021
Procedural Posture
Equity Proceeding Seeking Interlocutory Injunctive Relief to Restrain Settlement of Sale of Property / Duty List Application on Summons
Outcome
Plaintiffs' Summons dismissed; interlocutory relief refused.
Legal Topics
['interlocutory Injunction' 'caveats' 'mortgagee Power of Sale' 'registered Mortgage Priorities' 'national Credit Code' 'undertaking as to Damages' 'delay and Balance of Convenience']
['equity' 'property Law' 'civil Procedure' 'credit Law'] ['interlocutory Injunction' 'caveats' 'mortgagee Power of Sale' 'registered Mortgage Priorities' 'national Credit Code' 'undertaking as to Damages' 'delay and Balance of Convenience']

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Procedural Posture

Equity Proceeding Seeking Interlocutory Injunctive Relief to Restrain Settlement of Sale of Property / Duty List Application on Summons

Legal Issues

  1. 1 ["Whether the Plaintiffs had established a sufficient basis for interlocutory relief restraining settlement of the sale of 15 O'Donnell Street, Port Kembla NSW 2505." "Whether alleged interests or claims concerning the Property, including a claimed life interest and alleged representations by H&H MEZZ Pty Ltd, could support an injunction against Ageist's sale." 'Whether alleged breaches of the National Credit Code (Cth) or related legislation affected the validity or enforceability of the mortgages.' 'Whether delay, prior caveat proceedings, the position of the purchaser, and the absence of evidence supporting an undertaking as to damages warranted refusal of interlocutory relief.']

Ratio Decidendi

The Summons was dismissed because the Plaintiffs' own counsel accepted that the affidavits did not support interlocutory relief, the Plaintiffs failed to establish a prima facie case or serious question justifying restraint of the sale, and further discretionary factors including significant self-induced delay, repeated prior unsuccessful caveat claims and orders restraining further caveats, prejudice to Ageist and the bona fide purchaser, lack of evidence affecting PTAL's entitlement to enforce its mortgage, unresolved and unsupported National Credit Code arguments, and absence of evidence giving value to the undertaking as to damages all weighed against injunctive relief.

Court Disposition

Plaintiffs' Summons dismissed; interlocutory relief refused.

Orders

  • ["The Plaintiffs' Summons should be dismissed." "The Plaintiffs should pay Ageist's costs."]