Goater v Commonwealth Bank of Australia

In *Goater v Commonwealth Bank of Australia*, the applicants, Mr and Mrs Goater, sought an interlocutory injunction to prevent the respondent, Commonwealth Bank of Australia, from selling properties over which it held a mortgage and of which it was in possession. The injunction was sought pending the determination of an application for leave to appeal and, if granted, the appeal itself.

The primary legal issues before the court were whether the mortgagors were required to pay the full sum owing under the mortgage into court as a condition for obtaining the injunction, whether any exception to this general rule applied in the circumstances, and whether the mortgagors needed to provide the usual undertaking as to damages.

Ward JA dismissed the application for an injunction. The court applied the general rule that a mortgagor seeking to restrain a mortgagee's sale must pay the amount claimed by the mortgagee into court, absent exceptional circumstances. No such exceptional circumstances were established by the applicants. The court also noted the requirement for an undertaking as to damages, which was not provided.

The application for an injunction was dismissed with costs. The court directed the parties to liaise with the Registrar for an expedited listing of the application for leave to appeal and any concurrent appeal. The respondent was ordered to provide the applicants with seven days' written notice of any proposed auction or private treaty sale of the properties. Liberty was granted to the parties to apply for a variation of this notice requirement.