Fletcher v Ould Pty Ltd

The matter of Fletcher v Ould Pty Ltd was heard in the Supreme Court of New South Wales, where the plaintiff sought to restrain the defendant from proceeding with the sale of a property under the terms of a mortgage. The dispute arose when the plaintiff, Fletcher, who held a mortgage over certain land, sought an interlocutory injunction to prevent the defendant, Ould Pty Ltd, from exercising its power of sale and proceeding with the sale. The central issue before the court was whether the balance of convenience favoured the grant of the injunction, given that the power of sale was exercisable at the mortgagee's absolute discretion and Fletcher's ability to pay the mortgage debt was not in question.

The court considered the well-established principles concerning the exercise of the power of sale and the circumstances under which an interlocutory injunction might be appropriate. It noted that while the power of sale is generally absolute, equity may intervene in exceptional circumstances to restrain its exercise. The court examined the balance of convenience, a critical factor in determining whether to grant an interlocutory injunction. It assessed whether Fletcher would suffer significant prejudice if the injunction were not granted and whether Ould Pty Ltd would be prejudiced if the injunction were granted. The court found that the balance of convenience did not favour granting the injunction, primarily because Fletcher's ability to pay the mortgage debt was not in doubt and there was no significant risk of prejudice to Ould Pty Ltd if the sale were delayed.

Consequently, the court dismissed the plaintiff's application for an interlocutory injunction. The decision underscored that the court must carefully weigh the equities in cases involving the power of sale and the application for an interlocutory injunction, ensuring that the balance of convenience is thoroughly assessed. This approach ensures that the rights and interests of all parties are fairly considered, while also recognising the general principle that the power of sale is exercisable at the mortgagee's discretion.