Mahaffy v Mahaffy

The matter before the court involved an application from the applicant to restrain the sale of property or to require the proceeds of the sale to be paid into court pending the final determination of the proceedings. The case was heard by the Supreme Court of New South Wales in the Equity Division. The applicant sought these orders in relation to a property that was the subject of a mortgage and which the mortgagee purported to sell under a power of sale. The dispute arose due to the applicant's contention that the mortgagee had not validly exercised the power of sale and that the sale should be restrained or the proceeds held in court.

The primary legal issues the court needed to address were whether the applicant was in contempt of court for non-compliance with the previous interlocutory orders, whether the contempt was of an order in the same suit or proceedings, whether there was a serious question to be tried that the power of sale had been validly exercised, and whether the notice given under section 57(2)(b) of the Real Property Act 1900 was adequate. The court was also required to determine whether there was a material change in circumstances or fresh material that warranted varying or setting aside the previous interlocutory orders, and whether the balance of convenience favoured the applicant's application.

The court found that the applicant was not in contempt of court for failing to comply with the previous interlocutory orders, as the contempt was not of an order in the same suit or proceedings. The court held that there was a serious question to be tried as to whether the power of sale had been validly exercised. However, the court also concluded that the notice given under the Real Property Act was sufficient. As there was no material change in circumstances or fresh material, and the balance of convenience did not favour the applicant's application, the court dismissed the application to vary or set aside the previous interlocutory orders.

The court made no orders as to costs and dismissed the application in its entirety. The matter was to proceed to final hearing on the merits, where the validity of the power of sale would be determined.