Serobian v Commonwealth Bank of Australia

[2009] NSWSC 1312

CITATION:	Serobian & Anor v Commonwealth Bank of Australia [2009] NSWSC 1312
HEARING DATE(S):	27 November 2009
JUDGMENT DATE :	27 November 2009
JURISDICTION:	Equity
JUDGMENT OF:	Slattery J at 1
EX TEMPORE JUDGMENT DATE:	27 November 2009
DECISION:	Injunctive relief against defendant declined. Adjourned to Tuesday 1 December 2009 before the Duty Judge.
CATCHWORDS:	EQUITY - equitable remedies - injunctions - borrower/mortgagor seeks an injunction restraining the defendant bank's exercise of a power of sale over the security property - borrower/mortgager unable to tender or pay into Court the moneys secured - party seeking equity unable to do equity - injunction refused
CATEGORY:	Principal judgment
CASES CITED:	Inglis v Commonwealth Bank of Australia (1971) 126 CLR 161 Wilby v St George Bank (2001) 80 SASR 404
PARTIES:	First Plaintiff: Shahen Serobian Second Plaintiff: Christine Serobian Defendant: Commonwealth Bank of Australia
FILE NUMBER(S):	SC 4885/09
COUNSEL:	Plaintiffs: Christine Serobian (Self-Represented) Defendant: Mr J Falconer
SOLICITORS:	Plaintiffs: Christine Serobian (Self-Represented) Defendant: Henry Davis York

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST

SLATTERY J

FRIDAY 27 NOVEMBER 2009

4885/09 SHAHEN SEROBIAN AND CHRISTINE SEROBIAN v COMMONWEALTH BANK OF AUSTRALIA

JUDGMENT

1 HIS HONOUR: At approximately 4 pm today Christine Serobian appeared in person before the Court upon her notice of motion seeking injunctive relief against the Commonwealth Bank of Australia. Although her claim is put in several ways, she seeks to restrain the bank’s proposed sale of a property in Addison Road, Manly. In conformity with the Court’s policy of reducing the risk of identity theft, the precise address of the property is not published in this judgment. At this time of day and because of other business in the duty list I have had limited time to become familiar with the wider history of this case. I have read Ms Serobian’s principal affidavit of 27 November 2009. I have also read her submission in support of her motion.

2 Ms Serobian says that until very recently she had understood that the property would be sold by auction on Saturday 5 December 2009. She says that only in the last day or so she discovered that the bank might sell the property before auction. The property will be opened for inspection this coming weekend.

3 I have asked Mr Falconer, who appears on behalf of the bank, whether any interim undertaking is to be provided by the bank that the bank will not exchange contracts on the property over the weekend, if a buyer is found by the bank before Tuesday of next week when the matter is next before the Court for directions. At the very short notice Ms Serobian provided of her application, the bank is not able to get instructions this afternoon. The officer in charge of the file is not currently contactable at the bank.

4 Many matters between the parties have been determined in related proceedings by Hammerschlag J after a contested hearing. His Honour made orders for possession of a number of properties including the subject property.

5 Ms Serobian has said to me that she wishes to make allegations of fraud and various forms of malpractice against the bank in these proceedings. The bank says that these allegations were substantially already dealt with in the proceedings before Hammerschlag J. I have asked Ms Serobian to outline some of them to me. In her outline she referred to matters relating to aspects of the evidence before Hammerschlag J and to the alleged failure by the bank to credit proceeds of sale of about $275,000 from another security property against the bank’s claim against her and her family companies.

6 I am told that the overall debt owing by the interests associated with Ms Serobian together with accumulated interest is about $8,000,000. Approximately $6,000,000 is said by Ms Serobian to be the accumulated interest.

7 I have explained to Ms Serobian that there is a long standing principle stated by the High Court in Inglis v Commonwealth Bank of Australia (1971) 126 CLR 161 that a mortgagor in default seeking the assistance of a Court of Equity to restrain a mortgagee from exercising a power of sale, over a security must tender or pay into Court the funds owed. The principle is based on the maxim that he who seeks equity must do equity. In the case of a transaction involving the loan of moneys it has invariably been held to be incumbent on a borrower seeking relief in equity to tender the amount due together with interest: Wilby v St George Bank (2001) 80 SASR 404 at [77].

8 I have asked Ms Serobian whether she is in a position to comply with this principle and tender the funds owed or at least those equivalent to the bank’s security property in question. She has candidly indicated to the Court that she is not able to do this. In those circumstances I must apply this principle of law.

9 I decline to grant the relief sought in the motion today on an interlocutory basis. I will not, however, dismiss the motion. Ms Serobian had only limited time to present her case today because of the press of other matters in the duty list. Also there may be other relief that Ms Serobian still seeks under the motion. I will therefore adjourn this motion before the Duty Judge on Tuesday next week, when the matter is listed for directions.

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