Maytom v Perpetual Trustees Victoria Limited [2010] NSWSC 765

Maytom v Perpetual Trustees Victoria Limited [2010] NSWSC 765

The plaintiff failed to establish a serious question to be tried or any orthodox basis for interlocutory relief. Clauses 7.1 and 7.3 did not make notice a condition precedent to the defendant's entitlement to charge varied rates, fees or charges, and the statements issued to the plaintiff disclosed the increased charges. Accordingly there was no arguable basis that the amount in the 17 February 2010 s 57(2)B notice was not arrears. Further, hardship, an offer to redeem, and possible refinance could not justify restraining the defendant's power of sale without an underlying cause of action based on wrongful conduct by the lender.

Jurisdiction
Australia
Judgment Date
08 July 2010
Procedural Posture
Application to Restrain the Exercise of a Mortgagee's Power of Sale / Notice of Motion for Interlocutory Injunction
Outcome
Notice of motion dismissed with costs.
Legal Topics
['injunction' "mortgagee's Power of Sale" 'equity of Redemption' 'loan Agreement Interest Rate Variations' 'condition Precedent' 's 57(2)b Notice']
['equity' 'contract' 'real Property' 'mortgages'] ['injunction' "mortgagee's Power of Sale" 'equity of Redemption' 'loan Agreement Interest Rate Variations' 'condition Precedent' 's 57(2)b Notice']

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Procedural Posture

Application to Restrain the Exercise of a Mortgagee's Power of Sale / Notice of Motion for Interlocutory Injunction

Legal Issues

  1. 1 ['Whether the s 57(2)B notice dated 17 February 2010 was invalid because the amount specified did not in truth represent arrears under the loan.' "Whether cl 7.1 or cl 7.3 of the Loan Terms and Conditions Booklet made notice of increased rates, fees or charges a condition precedent to the defendant's entitlement to charge them." "Whether hardship, an offer to redeem, and possible refinance were sufficient grounds for an injunction to restrain the mortgagee's power of sale without an underlying cause of action." "Whether discretionary considerations justified restraining the defendant's power of sale."]

Ratio Decidendi

The plaintiff failed to establish a serious question to be tried or any orthodox basis for interlocutory relief. Clauses 7.1 and 7.3 did not make notice a condition precedent to the defendant's entitlement to charge varied rates, fees or charges, and the statements issued to the plaintiff disclosed the increased charges. Accordingly there was no arguable basis that the amount in the 17 February 2010 s 57(2)B notice was not arrears. Further, hardship, an offer to redeem, and possible refinance could not justify restraining the defendant's power of sale without an underlying cause of action based on wrongful conduct by the lender.

Court Disposition

Notice of motion dismissed with costs.

Orders

  • ['The notice of motion is dismissed with costs.' "The plaintiff's solicitor is directed to file the summons in the Registry and to pay the appropriate filing fee."]