Burge v Commonwealth Bank of Australia [2016] FCA 1159

Burge v Commonwealth Bank of Australia [2016] FCA 1159

The interlocutory injunction was refused because the applicant had very weak prospects of establishing that the second credit contract, associated mortgages and power of sale should be set aside or declared void, given the Tasmanian Supreme Court judgments and the Deed of Settlement and Release, and because the balance of convenience and justice was against relief. The applicant had delayed despite knowing since at least early 2016, and certainly by 4 July 2016, that sale was threatened; she did not offer to pay even the amount she conceded was due or provide substantial security for her undertaking as to damages; the CBA was already in possession; and damages were likely to be an...

Jurisdiction
Australia
Judgment Date
22 September 2016
Procedural Posture
Application for Interlocutory Injunction in a Federal Court Proceeding Concerning Banking and Mortgage Enforcement / Interlocutory Application; Proceeding Dismissed as Against the Second Respondents
Outcome
Interlocutory application dismissed; proceeding wholly dismissed as against the second respondents.
Legal Topics
['interlocutory Injunction' 'mortgagee Power of Sale' 'misleading or Deceptive Conduct' 'unconscionable Conduct' 'serious Question to Be Tried' 'balance of Convenience' 'res Judicata and Issue Estoppel' 'settlement Deed']
['banking and Finance' 'corporations' 'consumer Credit' 'equity' 'civil Procedure'] ['interlocutory Injunction' 'mortgagee Power of Sale' 'misleading or Deceptive Conduct' 'unconscionable Conduct' 'serious Question to Be Tried' 'balance of Convenience' 'res Judicata and Issue Estoppel' 'settlement Deed']

Case Brief

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Procedural Posture

Application for Interlocutory Injunction in a Federal Court Proceeding Concerning Banking and Mortgage Enforcement / Interlocutory Application; Proceeding Dismissed as Against the Second Respondents

Legal Issues

  1. 1 ['Whether the Court should grant an interlocutory injunction restraining the Commonwealth Bank of Australia from selling by auction the Elphin Road property.' 'Whether there was a serious question to be tried concerning the validity of the second credit contract, associated mortgages and mortgagee power of sale.' 'Whether the balance of convenience and justice favoured interlocutory injunctive relief.' 'Whether the Federal Court had jurisdiction to grant relief against the second respondents.']

Ratio Decidendi

The interlocutory injunction was refused because the applicant had very weak prospects of establishing that the second credit contract, associated mortgages and power of sale should be set aside or declared void, given the Tasmanian Supreme Court judgments and the Deed of Settlement and Release, and because the balance of convenience and justice was against relief. The applicant had delayed despite knowing since at least early 2016, and certainly by 4 July 2016, that sale was threatened; she did not offer to pay even the amount she conceded was due or provide substantial security for her undertaking as to damages; the CBA was already in possession; and damages were likely to be an...

Court Disposition

Interlocutory application dismissed; proceeding wholly dismissed as against the second respondents.

Orders

  • ['The Interlocutory Application filed by the applicant on 21 September 2016 be dismissed.' "The applicant pay the first and third respondents' costs of and incidental to that Interlocutory Application." 'This proceeding be wholly dismissed as against the second respondents.' 'The applicant pay the costs of the...