Naro Investments Pty Ltd v Benjamin & Khoury Pty Ltd [2019] NSWSC 1297

Naro Investments Pty Ltd v Benjamin & Khoury Pty Ltd [2019] NSWSC 1297

The balance of convenience did not justify restraining the defendant from enforcing its rights under the deed until final determination, given repeated plaintiff delays, legitimate expectations created for the defendant, and lack of persuasive evidence that registration of the defendant's second mortgage would cause prejudice. Limited interlocutory relief may be granted, conditional on plaintiffs requiring provision of deposit under the contract of sale and possible termination if deposit not made by fixed date.

Jurisdiction
Australia
Judgment Date
26 September 2019
Procedural Posture
Civil / Interlocutory Application for Injunction
Outcome
Interlocutory relief partially granted; Court declines to restrain registration of second mortgages but will restrain other enforcement action until a fixed date and conditional upon provision of deposit (or contract termination). Short minutes of order to be brought in, and proceedings adjourned.
Legal Topics
['interlocutory Injunction' 'costs Agreement' 'enforcement of Securities' 'contracts' 'undue Influence' 'unconscionable Conduct' 'fiduciary Duties' 'economic Duress' 'procedure']
['equity'] ['interlocutory Injunction' 'costs Agreement' 'enforcement of Securities' 'contracts' 'undue Influence' 'unconscionable Conduct' 'fiduciary Duties' 'economic Duress' 'procedure']

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Procedural Posture

Civil / Interlocutory Application for Injunction

Legal Issues

  1. 1 ['Whether interlocutory injunctive relief should be granted restraining the defendant from enforcing rights under a deed relating to mortgages and powers of attorney until final determination of proceedings' 'Balance of convenience regarding restraining enforcement of security interests until litigation is concluded' 'Effect of contract of sale over the subject properties on the nature and scope of interlocutory relief']

Ratio Decidendi

The balance of convenience did not justify restraining the defendant from enforcing its rights under the deed until final determination, given repeated plaintiff delays, legitimate expectations created for the defendant, and lack of persuasive evidence that registration of the defendant's second mortgage would cause prejudice. Limited interlocutory relief may be granted, conditional on plaintiffs requiring provision of deposit under the contract of sale and possible termination if deposit not made by fixed date.

Court Disposition

Interlocutory relief partially granted; Court declines to restrain registration of second mortgages but will restrain other enforcement action until a fixed date and conditional upon provision of deposit (or contract termination). Short minutes of order to be brought in, and proceedings adjourned.

Orders

  • ['No restraint on defendant registering second mortgages if able to do so' 'Defendant restrained from exercising other security rights under deed or powers of attorney until date after 10 October 2019, conditional on deposit provision' 'Plaintiffs required to terminate contract of sale if deposit not provided by 10...