C and L Cameron Pty Limited v Chiciak

C and L Cameron Pty Limited, the mortgagee, brought an action against Chiciak, the mortgagor, to obtain summary judgment to enforce a power of sale over land in Bondi, New South Wales. The mortgagor did not respond to the claim and the mortgagee was granted summary judgment. The mortgagee subsequently applied for leave to issue a writ of possession and for an order restraining the sale of the property until the appeal against the summary judgment was determined. The mortgagee had already taken possession of the property, advertised it for sale and received offers to purchase. The mortgagee argued that it had lawfully exercised its power of sale and that there was no reasonably arguable question as to whether the notice required by section 57(2)(b) of the Real Property Act 1900 (NSW) had been served. The mortgagor contended that the mortgagee had failed to serve the notice and that the court should exercise its residual discretion to restrain the sale of the property.

The court considered whether the mortgagor had raised a reasonably arguable question as to whether the mortgagee had served the notice of its intention to exercise the power of sale. The court found that it was not necessary to determine whether the notice had been served by post or on the occupiers of the property because it was unnecessary to decide that issue in order to determine the application. The court held that the mortgagor had not raised a reasonably arguable question as to whether the notice had been served and that the mortgagee had lawfully exercised its power of sale. The court also considered the balance of convenience and held that the delay likely to be caused by restraining the sale would cause financial detriment to the mortgagee. The court declined to exercise its residual discretion to restrain the sale of the property.

The court dismissed the application to restrain the sale of the property and ordered that the writ of possession issue and that the sale proceed as advertised. The court held that the mortgagor's appeal against the summary judgment would be heard before the sale but that the sale would not be stayed pending the outcome of the appeal. The court held that the mortgagee was entitled to enforce its power of sale and that the mortgagor's arguments were not reasonably arguable. The court held that the balance of convenience favoured the mortgagee and that the sale should proceed as planned.