Merton v Bank of Queensland Ltd

The applicant, Merton, sought an interlocutory mandatory injunction against the respondent, Bank of Queensland Ltd, to compel the payment of monies from the proceeds of a mortgagee sale out of court. The application was heard by Ward JA in the Court of Appeal of New South Wales.

The central legal issue before the Court was whether it should grant an interlocutory mandatory injunction requiring the Bank of Queensland to pay disputed funds, arising from a mortgagee sale, out of court pending the final determination of the substantive proceedings.

Ward JA dismissed the application. The Court applied the principles governing the grant of interlocutory mandatory injunctions, which require a high degree of certainty that the applicant will succeed at trial. In this instance, the Court found that the applicant had not demonstrated a sufficient likelihood of success to warrant the extraordinary remedy of a mandatory injunction at the interlocutory stage. The Court also considered the potential prejudice to the parties and the balance of convenience.

The application for the interlocutory mandatory injunction was dismissed.