Defined Properties Investment ATF the Define Property Trust No. 1 v National Commercial Finance Pty Limited [2018] NSWSC 1294

Defined Properties Investment ATF the Define Property Trust No. 1 v National Commercial Finance Pty Limited [2018] NSWSC 1294

The summons was dismissed because the proposed statement of claim and affidavit did not demonstrate an arguable case for setting aside the consent judgment for possession, there was no evidence that the plaintiffs could make good the undertaking as to damages, and the balance of convenience did not favour an injunction where the defendant was acting under existing court orders, the mortgage remained unpaid, no payment into court was offered, and the plaintiffs had delayed despite repeated opportunities to plead their case.

Jurisdiction
Australia
Judgment Date
09 August 2018
Procedural Posture
Civil Procedure Interlocutory Application Seeking an Urgent Interlocutory Injunction Restraining an Auction of Mortgaged Property / Ex Tempore Ruling on Urgent Summons Before the Duty Judge
Outcome
The summons filed in Court was dismissed and the plaintiffs were ordered to pay the defendant's costs of the application.
Legal Topics
['interlocutory Injunction' 'judgment for Possession' 'auction of Property' 'pleadings Under the Uniform Civil Procedure Rules 2005 (nsw)' 'undertaking as to Damages' 'balance of Convenience' 'costs Follow the Event']
['civil Procedure' 'costs' 'mortgage Enforcement'] ['interlocutory Injunction' 'judgment for Possession' 'auction of Property' 'pleadings Under the Uniform Civil Procedure Rules 2005 (nsw)' 'undertaking as to Damages' 'balance of Convenience' 'costs Follow the Event']

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Procedural Posture

Civil Procedure Interlocutory Application Seeking an Urgent Interlocutory Injunction Restraining an Auction of Mortgaged Property / Ex Tempore Ruling on Urgent Summons Before the Duty Judge

Legal Issues

  1. 1 ["Whether the plaintiffs' proposed pleading and supporting affidavit demonstrated an arguable case for impugning the consent judgment for possession." 'Whether there was evidence that the plaintiffs could make good the usual undertaking as to damages.' 'Whether the balance of convenience favoured restraining the defendant from proceeding with the auction.']

Ratio Decidendi

The summons was dismissed because the proposed statement of claim and affidavit did not demonstrate an arguable case for setting aside the consent judgment for possession, there was no evidence that the plaintiffs could make good the undertaking as to damages, and the balance of convenience did not favour an injunction where the defendant was acting under existing court orders, the mortgage remained unpaid, no payment into court was offered, and the plaintiffs had delayed despite repeated opportunities to plead their case.

Court Disposition

The summons filed in Court was dismissed and the plaintiffs were ordered to pay the defendant's costs of the application.

Orders

  • ['Dismiss the summons filed in Court today.' "Order the plaintiffs to pay the defendant's costs of the application."]