H Developments Pty Limited v Cronin

[2007] NSWSC 1314

Reported Decision: (2007) 25 ACLC 1,554

New South Wales

Supreme Court

CITATION:	H Developments Pty Limited v Cronin & Anor [2007] NSWSC 1314
HEARING DATE(S):	15/11/07
JUDGMENT DATE :	15 November 2007
JURISDICTION:	Equity Division
JUDGMENT OF:	Barrett J
EX TEMPORE JUDGMENT DATE:	15 November 2007
DECISION:	Application for interlocutory injunction refused
CATCHWORDS:	EQUITY - injunction - to restrain completion of sale by mortgagee - mortgage moneys not tendered or paid into court -sale said to be at undervalue - not possible so to conclude - in any event damages or equitable compensation is adequate remedy
CASES CITED:	Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161
PARTIES:	H Developments Pty Limited - Plaintiff John Patrick Cronin and Joseph David Hayes as Receiver and Manager of Developments Pty Limited appointed by Suncorp-Metway Limited - First Defendant Suncorp-Metway Limited - Second Defendant
FILE NUMBER(S):	SC 5530/07
COUNSEL:	Mr S.J. Burchett - Plaintiff
SOLICITORS:	D'Angelo Solicitors - Plaintiff

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

THURSDAY 15 NOVEMBER 2007

5530/07 H. DEVELOPMENTS PTY LTD v CRONIN & ANOR

JUDGMENT

1 The plaintiff is the mortgagor of a property at Westmead and in that capacity seeks an interlocutory injunction to restrain completion of a sale scheduled to complete at 3.30pm today. The sale is a sale by receivers appointed by the mortgagee, Suncorp Metway Limited.

2 The defendants have had very short notice of this application and I am informed by counsel for the plaintiff that their solicitors have indicated that the defendants will not be appearing.

3 The case is put initially on the basis that the plaintiff mortgagor has obtained an approval to refinance and that funds to pay out the mortgage will be available in a very short time.

4 I have been given some material by way of correspondence from a new lender. But to my mind the approval is a conditional one and there can be no certainty as to when the money would be forthcoming, if at all.

5 In any event the general rule is that a mortgagee sale will be enjoined only if the mortgagor pays into court the whole of the moneys secured, as calculated by the mortgagee. That is the rule in Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161. There has been no payment into court here.

6 There is a secondary complaint, namely, that the sale is at an undervalue, being a sale on the basis that a development approval does not attach to the property, whereas, the mortgagor says, there is development approval.

7 The evidence does not, to my mind, show that there is a development approval. The most that might be shown is that there was some argument between the solicitors in correspondence on the matter and that the question of subsistence of a development approval is likely ultimately depend on the questions of fact and degree going to the extent to which work has been done on the property. That is not something on which I am able to make any decision at all on the material before me.

8 In any event, if the sale is at an undervalue, that is something that sounds in damages or equitable compensation and there is no reason to think that damages or equitable compensation would not be an adequate remedy.

9 When Mr Burchett addressed me earlier today, he submitted that an estoppel had arisen as against the mortgagee, in that the mortgagor had been encouraged to act on the assumption that the mortgagee would give proper consideration to an ability to refinance and would extend time. Representations to that effect were made and time was extended, but the agreed time has now run out and I cannot see there could be any estoppel which would prevent the mortgagee and the receiver from completing the sale.

10 I have not been shown any serious question to be tried. The application for interlocutory injunctive relief is therefore refused.

**********