Serobian v Commonwealth Bank of Australia

In the matter of Serobian versus the Commonwealth Bank of Australia, the Federal Court was asked to consider whether the bank could exercise its power of sale over the security property in question. The applicant, Serobian, was a borrower who had been unable to either tender the moneys secured by the mortgage or pay those funds into court. Consequently, Serobian sought an injunction to prevent the bank from exercising its power of sale over the property. The central legal issue before the court was whether the applicant, in order to receive equitable relief, must be willing and able to pay the money secured by the mortgage. This principle, often referred to as "party seeking equity must do equity," was at the heart of the dispute.

The court held that for the applicant to be entitled to an injunction, they must demonstrate not only that they have a good arguable case but also that they are willing and able to pay the money secured by the mortgage. This principle stems from the broader equitable maxim that a party seeking equitable relief must, to some extent, be able to do equity themselves. In this case, the court found that Serobian, unable to pay the moneys secured by the mortgage, did not meet the necessary condition to be granted an injunction. Therefore, the court refused to grant the injunction sought by Serobian.

The court's reasoning was grounded in the principle that equitable relief is discretionary and contingent upon the applicant's ability to meet certain conditions. By failing to provide evidence that they could pay the moneys secured by the mortgage, Serobian did not satisfy the prerequisites for obtaining an injunction. The court's decision underscored the importance of this equitable principle, reaffirming that a party seeking equitable relief must be willing and able to meet their obligations. The court's ruling was final, and no further orders were made beyond the refusal of the injunction.