Morton, M. v Black, D.R

[1986] FCA 55

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	) No. G345 of 1985
1

DIVISION GENERAL 1

BETWEEN : MARY MO lRTON -

Applicant

- AND : DONALD ROSS BLACK

Respondent

CORAM :	JACKSON J.
-	DATE :	21st February 1986
PLACE :	SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The injunction be refused.

2 . The applicant pay the costs of the application

to be taxed to the respondent.

- Note: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

1

NEW SOUTH WALES DISTRICT REGISTRY No. G345 of 1985

)

DIVISION GENERAL 1

BETWEEN : MARY MORTON

Applicant

- AND : DONALD ROSS BLACK

Respondent

CORAM :	JACKSON J.
-	DATE :	5th March 1986
PLACE :	SYDNEY

REASONS FOR JUDGMENT

These are proceedings which were instituted on 22nd

November 1985 and in which the applicant then sought only an

order restraining the respondent or his agents from offering

for sale or selling a property which is Portions 4 , 5 and 3 3 ,

Parish of Medlow, County of Raleigh. Morling J. granted an ex

parte injunction on that day and it was continued by him on

2 6 November 1985 at a hearing at which both parties were

represented, on the basis that the matter would be heard

finally on 19th December 1985.

2.

When the matter came on for hearing that day the

parties did not wish the matter to proceed and directions were

glven with a view to a hearing in 1986. The applicant's

solicitor was not prepared to give an undertaking as to

damages and in consequence Morling J. dlscharged the

injunctlon which he had earlier granted.

The property is now to be auctioned at 11.00 a.m. on

22nd February 1986, (1.e. tomorrow) by the respondent as

mortgagee exercising power of sale. The applicant is the

owner of the property, having purchased it from the respondent

pursuant to a contract of sale dated 4th October 1984. The

purchase price under the contract was $315,000.00 and the

mortgage to whlch I have referred was given'by the applicant

to the respondent for part of the purchase price, namely some

$183,500.00. The $183,500.00 was payable as to $60,000.00 on

14th November 1984, as to $83,500.00 on 15th August 1985 and

as to the balance of $40,000.00 on 31st January 1986.	The
latter two payments have not been made.

The applicant first became aware of the proposal to

sell the property by auction 7th February 1986 and a Notice

of Motion seeking interlocutory in~unctlons was filed on 17th

February. A Statement of Claim was filed on the same day.

The Statement of Claim alleges that before entry into

the contract and mortgage, mlsrepresentations were made by the

3.

respondent to, or to be conveyed to the applicant concerning

the property which would attract the operation of s.52 of the

Trade Practices Act 1974. Reliance is placed also on

s.53A(l)(b) and on fraud at common law but It is accepted that

for present purposes it is unnecessary to go beyond s.52.

The tests to be applied in considering an application

of this nature are whether there is a serious question to be

tried and, if so, whether the balance of convenience lies in

favour of the grant	or the refusal of the injunction.
See Epitoma Pty Ltd	v. The Australasian Meat Industry

Employees' Union and Ors (No.2) (1984) 54 A.L.R. 730 at 734.

As to the first of these matters I think that the

applicant's evidence might have condescended to more detail

concerning the facts constituting the contraventions of s.52,

but I am prepared to assume that i shows that there is a

serious question to be tried. Having made that assumption,

however, it seems to me clear that the balance of convenience

lies in favour of the refusal of the injunction.

It is contended on behalf of the applicant that

because the effect of the proceedings may ultimately be that,

in one way or another, the liability of the applicant to the

respondent under the mortgage is reduced, the balance of

convenience favours the grant of the injunction. Further, it

is said, the appllcant wishes to reside in the property and

Y

4 .

has nowhere else to go.

I should note in passing that the applicant gave oral

evidence and, whilst I shall not go into detail concerning her

credit, the present proceedings being interlocutory, I am not

prepared to accept her evidence that she does bona fide wish

to reside in the property. Further I am not prepared to

accept her evidence that she would do	if successful in the
proceedings.

On the other hand the respondent points to the fact

that a very large sum of money is prima facie due under the

mortgage, and that this is the second occasion on which, on

the day before an auction sale, an injunction has been sought.

Further the purpose of the sale of the property, as I accept,

is not simply in order to put the proceeds of it in the

respondent's pocket. The respondent used part of the proceeds

of sale to the applicant, together with a loan of about

$lOO,OOO.OO from the State Bank, to purchase a property at

Tamworth in May 1985. The moneys were due to be repaid in

' $

part on 15th August 1985 and in part by 31st January 1986 and

*L' the loan was on the basis that the repayment to the Bank on

R

the 15th August 1985 would be made from the moneys payable by

the applicant to the respondent on that date under the . e.,

I ,. I ,

mortgage from the applicant. The Bank has a mortgage over the

Tamworth property under which he is in default because of the failure of-the applicant to pay him under her mortgage to him.

.

5.

It threatens to sell the Tamworth property, and it has cancelled the respondent's credit and has informed him that

his cheques will be dishonoured if drawn. The respondent, as

I find, has income which consists of a War Veteran's half

pension and is borrowing money to live.

In these circumstances I am of the view that I should

allow the auction	to proceed and I decline to grant the
injunction.

I order that the applicant pay to the respondent his

costs of the application to be taxed.

I certify that this and the 4

preceding pages are a true copy of

the Reasons for Judgment herein of his Honour Mr Justice Jackson.

Associate:

.