Permanent Custodians Limited v McMahon [2013] NSWSC 296

Permanent Custodians Limited v McMahon [2013] NSWSC 296

Given the potential for a substantive question as to whether the relevant default justifying the certificate under Farm Debt Mediation Act 1994 related to the original mortgage or to obligations under the subsequent Heads of Agreement, there is a serious question to be tried. The balance of convenience favors temporary restraint on mortgagee sales, given their irrevocable nature, despite discretionary factors against the injunction.

Parties
Plaintiff/respondent: Permanent Custodians Limited; Defendant/applicant: John Terence Michael McMahon; Defendant/applicant: Robyn Sandra McMahon
Jurisdiction
Australia
Judgment Date
27 March 2013
Procedural Posture
Application for Interlocutory Injunction / Interlocutory (ex Tempore Decision on Motion)
Outcome
Interlocutory injunction granted; sales restrained pending further order; undertaking as to damages required; costs reserved.
Legal Topics
Interlocutory Injunction, Mediation Under Farm Debt Mediation Act 1994, Mortgagee Sale Procedures
Practice and Procedure Interlocutory Injunction Mediation Under Farm Debt Mediation Act 1994 Mortgagee Sale Procedures

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 3 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Permanent Custodians Limited

Plaintiff/respondent

John Terence Michael McMahon

Defendant/applicant

Robyn Sandra McMahon

Defendant/applicant

Procedural Posture

Application for Interlocutory Injunction / Interlocutory (ex Tempore Decision on Motion)

Legal Issues

  1. 1 Whether a new mediation under the Farm Debt Mediation Act 1994 is required prior to mortgagee's sale due to the nature of the Heads of Agreement and timing of default/certificate
  2. 2 Whether a serious question to be tried exists with respect to the validity of the certificate issued under the Act
  3. 3 Whether the balance of convenience favors the grant of interlocutory injunctive relief

Ratio Decidendi

Given the potential for a substantive question as to whether the relevant default justifying the certificate under Farm Debt Mediation Act 1994 related to the original mortgage or to obligations under the subsequent Heads of Agreement, there is a serious question to be tried. The balance of convenience favors temporary restraint on mortgagee sales, given their irrevocable nature, despite discretionary factors against the injunction.

Court Disposition

Interlocutory injunction granted; sales restrained pending further order; undertaking as to damages required; costs reserved.

Orders

  • The plaintiff, by itself, its servants and agents, is restrained from auctioning, selling, alienating, leasing or otherwise disposing of properties known as 'Wyrallah' and 'Summerdowns' until further order.
  • The defendants are to give the plaintiff the usual undertaking as to damages.