Serobian & Anor v Commonwealth Bank of Australia [2009] NSWSC 1312

Serobian & Anor v Commonwealth Bank of Australia [2009] NSWSC 1312

Because Ms Serobian candidly indicated she was not able to tender the funds owed or at least those equivalent to the bank's security over the property, the Court applied the established equitable principle requiring a defaulting mortgagor seeking to restrain a mortgagee's power of sale to do equity, and declined interlocutory injunctive relief.

Jurisdiction
Australia
Judgment Date
27 November 2009
Procedural Posture
Notice of Motion Seeking Injunctive Relief in Equity / Interlocutory Application Before the Duty Judge
Outcome
Injunctive relief against the defendant declined; motion not dismissed and adjourned.
Legal Topics
['injunctions' "mortgagee's Power of Sale" 'mortgagor in Default' 'tender or Payment Into Court' 'he Who Seeks Equity Must Do Equity']
['equity' 'mortgage Law' 'banking and Finance'] ['injunctions' "mortgagee's Power of Sale" 'mortgagor in Default' 'tender or Payment Into Court' 'he Who Seeks Equity Must Do Equity']

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Procedural Posture

Notice of Motion Seeking Injunctive Relief in Equity / Interlocutory Application Before the Duty Judge

Legal Issues

  1. 1 ["Whether the plaintiffs should be granted interlocutory injunctive relief restraining the defendant bank's proposed sale of the security property." "Whether a mortgagor in default who cannot tender or pay into Court the moneys secured can obtain equitable relief restraining a mortgagee's exercise of power of sale."]

Ratio Decidendi

Because Ms Serobian candidly indicated she was not able to tender the funds owed or at least those equivalent to the bank's security over the property, the Court applied the established equitable principle requiring a defaulting mortgagor seeking to restrain a mortgagee's power of sale to do equity, and declined interlocutory injunctive relief.

Court Disposition

Injunctive relief against the defendant declined; motion not dismissed and adjourned.

Orders

  • ['Interlocutory relief sought in the motion was declined.' 'The motion was adjourned before the Duty Judge on Tuesday 1 December 2009 for directions.']