Gattellaro & Anor v Westpac

Gaudron J, sitting in chambers, considered an application by the applicants, Gattellaro and another, against Westpac. The dispute concerned an application for an interlocutory injunction to restrain Westpac from exercising its power of sale under a mortgage.

The primary legal issue before Gaudron J was whether the applicants had established a serious question to be tried regarding their claim that Westpac had breached its duty of care owed to them as mortgagors. This duty, it was argued, encompassed an obligation to exercise its power of sale in good faith and for a proper purpose, and not to act recklessly.

Gaudron J reasoned that the applicants had failed to demonstrate a serious question to be tried. Her Honour noted that the applicants' allegations of Westpac's improper motive in exercising the power of sale were unsubstantiated and speculative. The evidence did not support a finding that Westpac's actions were motivated by anything other than the recovery of the debt owed under the mortgage. Consequently, the threshold for granting an interlocutory injunction, which requires a serious question to be tried, was not met.

The application for an interlocutory injunction was dismissed.