Kennard, C.C. & Anor v. AGC Advances Ltd [1986] FCA 252

Kennard, C.C. & Anor v. AGC Advances Ltd [1986] FCA 252

The applicants have established a sufficiently strong prima facie case, given the special circumstances including reliance on allegedly misleading statements from the mortgagee’s employee, the applicants’ position akin to guarantors, and the unclear intention and effect of the mortgage documents. Therefore, interlocutory injunctive relief to restrain sale of the property is appropriate pending trial.

Parties
Applicant: Christopher Campbell Kennard; Applicant: Margaret Beth Kennard; Respondent: A.G.C. (Advances) Limited
Jurisdiction
Australia
Judgment Date
25 June 1986
Procedural Posture
Interlocutory Application / Interlocutory Injunction
Outcome
interlocutory injunction granted
Legal Topics
Mortgage, Misleading Statements, Interlocutory Relief, Co Ownership, Rectification
Trade Practices Property Law Mortgage Misleading Statements Interlocutory Relief Co Ownership Rectification

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Parties

Christopher Campbell Kennard

Applicant

Margaret Beth Kennard

Applicant

A.G.C. (Advances) Limited

Respondent

Procedural Posture

Interlocutory Application / Interlocutory Injunction

Legal Issues

  1. 1 Whether misleading statements were made by the mortgagee under s.52 of the Trade Practices Act 1974
  2. 2 Whether interlocutory relief (injunction) should be granted to restrain sale of property by mortgagee
  3. 3 Whether applicants’ interests in the property were affected by the mortgage

Ratio Decidendi

The applicants have established a sufficiently strong prima facie case, given the special circumstances including reliance on allegedly misleading statements from the mortgagee’s employee, the applicants’ position akin to guarantors, and the unclear intention and effect of the mortgage documents. Therefore, interlocutory injunctive relief to restrain sale of the property is appropriate pending trial.

Court Disposition

interlocutory injunction granted

Orders

  • Upon the applicants giving the usual undertaking as to damages, the respondent is restrained until trial of the principal proceedings or further order from selling or offering for sale the land contained in Certificate of Title Volume C5398, Folio 242 and Certificate of Title Volume C416, Folio 7 or any part thereof.
  • The costs of and incidental to the application (other than costs up to and including 19 June 1986, which are applicants' costs) will be costs in the proceedings.