Solid Holdings v IMFML Finance [2008] NSWSC 573

Solid Holdings v IMFML Finance [2008] NSWSC 573

There is no basis for the court to restrain the exercise of the mortgagee's power of sale in circumstances where the debt is outstanding and the mortgagor has not paid the amount due into court, nor is there a challenge to the mortgagee's entitlement to exercise the power of sale or manner of sale. The general rule, as stated in Inglis and Harvey v McWatters, requires payment into court for equity to intervene, and exceptions to this rule are unsettled and not applicable here. Therefore, the application to extend the injunction is refused.

Parties
Plaintiff: Solid Holdings Pty Ltd; First Defendant: IMFML Finance Pty Ltd; Second and Third Defendants: Receivers and Managers (appointed to the plaintiff by the mortgagee)
Jurisdiction
Australia
Judgment Date
05 June 2008
Procedural Posture
Application for Injunction / Determination of Interim Injunction Extension
Outcome
Application to extend the injunction refused.
Legal Topics
Mortgagee's Power of Sale, Injunction to Restrain Sale, Equity of Redemption
Equity Property Law Mortgagee's Power of Sale Injunction to Restrain Sale Equity of Redemption

Case Brief

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Parties

Solid Holdings Pty Ltd

Plaintiff

IMFML Finance Pty Ltd

First Defendant

Receivers and Managers (appointed to the plaintiff by the mortgagee)

Second and Third Defendants

Procedural Posture

Application for Injunction / Determination of Interim Injunction Extension

Legal Issues

  1. 1 Whether equity should restrain the exercise of mortgagee's power of sale when mortgagor proposes redemption.
  2. 2 Whether mortgagee acts in good faith in proceeding with sale when mortgagor claims imminent availability of funds.

Ratio Decidendi

There is no basis for the court to restrain the exercise of the mortgagee's power of sale in circumstances where the debt is outstanding and the mortgagor has not paid the amount due into court, nor is there a challenge to the mortgagee's entitlement to exercise the power of sale or manner of sale. The general rule, as stated in Inglis and Harvey v McWatters, requires payment into court for equity to intervene, and exceptions to this rule are unsettled and not applicable here. Therefore, the application to extend the injunction is refused.

Court Disposition

Application to extend the injunction refused.

Orders

  • Application to extend the injunction is declined.