MORTGAGE EZY AUSTRALIA PTY LTD -v- TURCO [2014] WASC 172

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASC 172
Case No:	CIV:1636/2014	Heard:	12 MAY 2014
Coram:	LE MIERE J	Delivered:	16/05/14
No of pages:	12	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
PDF Version

Parties:	MORTGAGE EZY AUSTRALIA PTY LTD MARIO TURCO SUELLEN TURCO
Catchwords:	Application for interlocutory injunction Serious question to be tried Whether plaintiff has proprietary interest in the Property Proper construction of the Loan Agreement Unjust enrichment No prima facie case for final relief Balance of convenience Application for freezing order Whether plaintiff has good arguable case Whether appropriate
Legislation:	The Supreme Court of Western Australia Consolidated Practice Directions, 9.6.1 [12] Transfer of Land Act 1893 (WA), s 123
Case References:	ABC v O'Neill (2006) 227 CLR 57 Avco Financial Services Ltd v Commonwealth Bank of Australia (1989) 17 NSWLR 679 Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 Henry v Henry (1996) 185 CLR 571 Industrial Acceptance Corporation Ltd v Tarulli [1974] WAR 125 Jackson v Stirling Industries Ltd (1987) 162 CLR 612 Re St George Bank [2011] NSWSC 730 Riley McKay Pty Ltd v McKay (1982) 1 NSWLR 264 State Bank of New South Wales v Berowra Waters Holdings Pty Ltd (1986) 4 NSWLR 398 Wambo Coal Pty Ltd v Ariff [2007] NSWSC 589; (2007) 63 ACSR 429

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : MORTGAGE EZY AUSTRALIA PTY LTD -v- TURCO [2014] WASC 172 CORAM : LE MIERE J HEARD : 12 MAY 2014 DELIVERED : 16 MAY 2014 FILE NO/S : CIV 1636 of 2014 BETWEEN : MORTGAGE EZY AUSTRALIA PTY LTD

Plaintiff

AND

MARIO TURCO

First Defendant

SUELLEN TURCO

Second Defendant

Catchwords:

Application for interlocutory injunction - Serious question to be tried - Whether plaintiff has proprietary interest in the Property - Proper construction of the Loan Agreement - Unjust enrichment - No prima facie case for final relief - Balance of convenience

Application for freezing order - Whether plaintiff has good arguable case - Whether appropriate

Legislation:

The Supreme Court of Western Australia Consolidated Practice Directions 9.6.1 [12]

Transfer of Land Act 1893 (WA), s 123

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff : Mr J C Giles & Mr P Van Der Zanden

First Defendant : No appearance

Second Defendant : Mr G D Cobby

Solicitors:

Plaintiff : Hotchkin Hanly

First Defendant : No appearance

Second Defendant : Calverley Johnston Lawyers

Case(s) referred to in judgment(s):

ABC v O'Neill (2006) 227 CLR 57
Avco Financial Services Ltd v Commonwealth Bank of Australia (1989) 17 NSWLR 679
Cardile v LED Builders Pty Ltd (1999) 198 CLR 380
Henry v Henry (1996) 185 CLR 571
Industrial Acceptance Corporation Ltd v Tarulli [1974] WAR 125
Jackson v Stirling Industries Ltd (1987) 162 CLR 612
Re St George Bank [2011] NSWSC 730
Riley McKay Pty Ltd v McKay (1982) 1 NSWLR 264
State Bank of New South Wales v Berowra…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] WASC 172
Decision Date: 16 MAY 2014

CaseChat Overview and Summary

Mortgage Ezy Australia Pty Ltd sought an interlocutory injunction against Turco to restrain him from dealing with property pending a final hearing. The dispute centres on whether the plaintiff has a proprietary interest in the property, which is central to the loan agreement between the parties. The court was required to determine if the plaintiff had a good arguable case and if it was appropriate to grant the injunction. The plaintiff claimed that it had a proprietary interest in the property, while Turco argued that he was the sole owner. The court examined the loan agreement to ascertain the rights of the parties.

The court examined the terms of the loan agreement and found that the plaintiff did not have a proprietary interest in the property. The court held that the plaintiff did not have a good arguable case for an interlocutory injunction, as it did not have a proprietary interest in the property. The court also found that the plaintiff had not established a serious question to be tried, nor had it shown that the balance of convenience favoured the grant of an interlocutory injunction. The court dismissed the application for a freezing order as the plaintiff had not demonstrated that it had a good arguable case for final relief. The court held that the plaintiff had not satisfied the requirements for an interlocutory injunction, and the application was dismissed.

The court did not make any final orders, as the application for interlocutory relief was dismissed. The court did not address the claim of unjust enrichment, as it found that the plaintiff had not made out a case for an interlocutory injunction. The court's decision was based on the plaintiff's failure to establish a good arguable case and the balance of convenience not favouring the grant of an interlocutory injunction. The court's reasoning highlights the importance of establishing a good arguable case and the balance of convenience in interlocutory injunction applications.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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