Lesic v Gippsreal Ltd [2007] NSWSC 426

Lesic v Gippsreal Ltd [2007] NSWSC 426

A short interlocutory injunction was warranted because the plaintiff raised a serious question to be tried as to whether the mortgagee's power of sale had arisen, particularly whether the required s 57(2)(b) notice had been received, and the balance of convenience justified preserving the position briefly despite the asserted risk of losing the sale; the payment-into-court rule did not bar relief where the exercisability of the power of sale itself was seriously in issue.

Jurisdiction
Australia
Judgment Date
20 April 2007
Procedural Posture
Urgent Application for Interlocutory Injunction to Restrain Exercise of Power of Sale Under Mortgage / Interlocutory Application Before the Duty Judge
Outcome
Short term interlocutory injunction granted to restrain entry into any contract for sale until and including 23 April 2007.
Legal Topics
["mortgagee's Power of Sale" 'injunction to Restrain Sale' 'real Property Act Notice' 'payment Into Court' 'balance of Convenience']
['equity' 'mortgages' 'real Property'] ["mortgagee's Power of Sale" 'injunction to Restrain Sale' 'real Property Act Notice' 'payment Into Court' 'balance of Convenience']

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 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Urgent Application for Interlocutory Injunction to Restrain Exercise of Power of Sale Under Mortgage / Interlocutory Application Before the Duty Judge

Legal Issues

  1. 1 ["Whether there was a serious question to be tried as to whether the occasion for exercise of the mortgagee's power of sale had arisen." 'Whether a notice under s 57(2)(b) of the Real Property Act 1900 had been received by the plaintiff mortgagor.' 'Whether interlocutory relief should be granted despite the general rule requiring payment into Court of the amount owing under the mortgage.' 'Where the balance of convenience lay given the proposed sale and the risk of losing an advantageous contract.']

Ratio Decidendi

A short interlocutory injunction was warranted because the plaintiff raised a serious question to be tried as to whether the mortgagee's power of sale had arisen, particularly whether the required s 57(2)(b) notice had been received, and the balance of convenience justified preserving the position briefly despite the asserted risk of losing the sale; the payment-into-court rule did not bar relief where the exercisability of the power of sale itself was seriously in issue.

Court Disposition

Short term interlocutory injunction granted to restrain entry into any contract for sale until and including 23 April 2007.

Orders

  • ['Leave granted to the plaintiff to file the summons and notice of motion initialled by the judge returnable on 23 April 2007 at 10am before the Duty Judge.' 'Leave granted to the plaintiff to file the supporting affidavits.' 'Service of summons and notice of motion dispensed with.' 'Upon the plaintiff by his...