Australia and New Zealand Banking Group v Webb

The case of Australia and New Zealand Banking Group v Webb involved the bank seeking an interlocutory injunction to prevent the exercise of its power of sale over a property that was mortgaged to the bank. The court was called upon to determine whether the bank was exercising its power of sale in good faith, particularly in light of the recent reconsideration of the general approach in Bayblu Holdings Pty Ltd v Capital Finance Australia Ltd [2011] NSWCA 39. The family home of the defendants was at risk of being sold by the bank, which had other properties sufficiently securing the outstanding debts. The defendants argued that the bank was not acting in good faith, and the court had to weigh the balance of convenience to determine whether the exercise of the power of sale should be restrained.

The primary legal issue before the court was whether the bank was exercising its power of sale in good faith, as required by equity principles. The court had to consider whether there was a serious question to be tried on this point, as well as whether the balance of convenience favoured granting the injunction. The court acknowledged that the bank had other properties that were sufficient to discharge the outstanding debts and that the exercise of the power of sale over the family home would cause significant hardship to the defendants. This consideration was crucial in determining whether the bank was acting in good faith and whether the balance of convenience favoured granting the injunction.

The court found that there was a serious question to be tried as to whether the bank was acting in good faith in seeking to exercise its power of sale over the family home. The court also determined that the balance of convenience favoured restraining the bank from exercising its power of sale. Given the significant hardship that would result from the sale of the family home, and the presence of other properties that were sufficient to discharge the outstanding debts, the court concluded that the exercise of the power of sale should be restrained until the serious question of good faith could be determined at a full hearing. The court granted the injunction to protect the defendants' interests pending the resolution of the underlying dispute.

The court's final order was that an interlocutory injunction be granted, restraining the bank from exercising its power of sale over the family home until further order. This decision was based on the finding that there was a serious question to be tried regarding the bank's good faith and that the balance of convenience favoured restraining the exercise of the power of sale. The injunction was intended to protect the defendants' interests pending the resolution of the underlying dispute at a full hearing.