Morton, M. v Black, D.R. [1986] FCA 55

Morton, M. v Black, D.R. [1986] FCA 55

Assuming a serious question to be tried exists regarding the alleged contraventions of s.52, the balance of convenience clearly lies in favour of refusing the injunction due to the significant mortgage sum outstanding, the respondent's financial jeopardy, and lack of credibility regarding the applicant's stated intention to reside in the property.

Parties
Applicant: Mary Morton; Respondent: Donald Ross Black
Jurisdiction
Australia
Judgment Date
21 February 1986
Procedural Posture
Application for Interlocutory Injunction / Judgment on Application for Interlocutory Injunction
Outcome
Injunction refused; costs awarded to respondent
Legal Topics
Misrepresentation, Mortgagee's Power of Sale, Injunctions, Trade Practices Act 1974 S 52
Contract Law Property Law Consumer Protection Misrepresentation Mortgagee's Power of Sale Injunctions Trade Practices Act 1974 S 52

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Parties

Mary Morton

Applicant

Donald Ross Black

Respondent

Procedural Posture

Application for Interlocutory Injunction / Judgment on Application for Interlocutory Injunction

Legal Issues

  1. 1 Whether a serious question to be tried exists regarding alleged misrepresentations under s.52 of the Trade Practices Act 1974
  2. 2 Whether the balance of convenience favours granting an interlocutory injunction to restrain the respondent from selling the property as mortgagee

Ratio Decidendi

Assuming a serious question to be tried exists regarding the alleged contraventions of s.52, the balance of convenience clearly lies in favour of refusing the injunction due to the significant mortgage sum outstanding, the respondent's financial jeopardy, and lack of credibility regarding the applicant's stated intention to reside in the property.

Court Disposition

Injunction refused; costs awarded to respondent

Orders

  • The injunction be refused.
  • The applicant pay the costs of the application to be taxed to the respondent.