Commonwealth Bank of Australia v Martinek

Commonwealth Bank of Australia (the Bank) and Mr. Martinek were the parties in this dispute, which concerned the Bank's claim for possession of a property and Mr. Martinek's defence and counterclaim. The matter was heard by Judge Burnett in the Supreme Court of New South Wales.

The central legal issues before the court were whether the Bank had validly exercised its power of sale over the property, and if not, whether Mr. Martinek was entitled to an injunction to restrain the sale. Additionally, the court considered Mr. Martinek's counterclaim for damages arising from the Bank's alleged breach of duty in conducting the sale.

Judge Burnett found that the Bank had not complied with the requirements of the mortgage deed and the *Real Property Act 1900* (NSW) in its attempts to exercise the power of sale. Specifically, the court determined that the notices served on Mr. Martinek were defective, failing to provide him with the requisite time to remedy the default. Consequently, the Bank's purported exercise of the power of sale was invalid. The court also found that the Bank had breached its duty to obtain a proper price for the property, as evidenced by the inadequate sale price achieved.

The court ordered that the Bank's claim for possession be dismissed and granted an injunction restraining the Bank from proceeding with the sale of the property. Mr. Martinek was awarded damages for the loss suffered as a result of the Bank's breach of duty.