Webuildem Pty Limited v Lord - [2013] NSWSC 1886

Supreme Court

New South Wales

Medium Neutral Citation: Webuildem Pty Limited v Lord & Ors [2013] NSWSC 1886
Hearing dates: 3, 5 & 9 December 2013
Decision date: 10 December 2013
Jurisdiction: Equity Division
Before: Slattery J
Decision:
Motion dismissed.

Catchwords: MORTAGE - application for an injunction preventing auction of properties mortgaged to the second defendant bank - whether the bank through its agents in possession, the first defendants, has adequately marketed the properties for sale - plaintiff has a conditional offer of refinancing - whether the plaintiff has a prima facie case against the mortgagee under Corporations Act 2001, s 420A - whether the balance of convenience favours the grant of an interlocutory injunction - general rule discussed that an injunction will not be granted unless the amount of the mortgage debt is paid into Court - whether exceptions to that rule may apply because the amount of the debt is in dispute or because a refinancing proposal is available - whether damages would be an adequate remedy.
Legislation Cited: Corporations Act 2001, ss 428 and 1324(4)
Cases Cited: Australian Broadcasting Corp v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Allfox Building Pty Ltd v Bank of Melbourne Ltd (1992) NSW ConvR 55-634
Bayblu Holdings Pty Ltd v Capital Finance Australia [2011] NSWCA 39
Clarke v Japan Machines (Aust) Pty Limited (No 2) [1984] 1 Qd R 421
Fortson Pty Ltd v Commonwealth Bank of Australia (2008) 100 SASR 162
GE Capital v Davis (2002) 11 BPR 20,529
Harvey v McWatters (1948) 49 SR (NSW) 173
Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161
Parist Holdings Ltd v Perpetual Nominees Ltd [2006] NSWSC 599
Re Webuildem Pty Limited [2012] NSWSC 708
Ultimate Property Group Pty Ltd v Lord (2004) 60 NSWLR 646
Webuildem Pty Limited v Arab Bank of Australia Ltd (2013) 300 ALR 99
Category: Interlocutory applications
Parties: Plaintiff: Webuildem Pty Limited
First Defendant: Brett Lord
Second Defendant: Jack Bournelis (as agents of the Arab Bank Australia Limited the mortgagee exercising power of sale)
Representation: Counsel:
Plaintiff: D.R. Pritchard SC
Defendants: A. Leopold SC; B. Koch
Solicitors:
Plaintiff: Adam Cutri, Somerville Legal
Defendants: Frank Tao, Henry Davis York

File Number(s): 2013/363874
Publication restriction: No

EX TEMPORE Judgment

An auction of ten properties at Hilly Street Mortlake ("the Mortlake properties") is scheduled for 6.30pm tonight. By Summons and Motion brought in the Equity Duty list filed last Tuesday, the plaintiff, Webuildem Pty Limited ("Webuildem") has sought, pursuant to Corporations Act 2001, ss 420A and 1324(4), orders restraining the first defendants in these proceedings, Brett Lord and Jack Bournelis, as agents for the second defendant the Arab Bank Australia Limited ("the Arab Bank"), the mortgagee exercising a power of sale, from conducting that auction. The plaintiff is the registered proprietor of the Mortlake properties, which are ten of an original parcel of eighteen properties, which the Arab Bank took possession of some time ago.

Webuildem's application must satisfy the well-known legal test applicable to…

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.

Continue reading Webuildem Pty Limited v Lord

Details

AGLC: Webuildem Pty Limited v Lord [2013] NSWSC 1886
Case: [2013] NSWSC 1886
Decision Date: 10 December 2013

CaseChat Overview and Summary

Webuildem Pty Limited sought an injunction to prevent the auction of properties mortgaged to the second defendant bank, with the first defendants acting as the bank's agents in possession. The plaintiff claimed it had a conditional offer of refinancing, which could potentially secure the debt and satisfy the bank's interests. The court had to determine if the bank had adequately marketed the properties for sale, and if the plaintiff had a prima facie case against the mortgagee under the Corporations Act 2001, s 420A. The balance of convenience was also a crucial consideration in deciding whether to grant an interlocutory injunction.

The court examined the general rule that an injunction will not be granted unless the mortgage debt is paid into Court, but noted that exceptions to this rule might apply. The exceptions considered were whether the amount of the debt was in dispute or if a refinancing proposal was available. The court also assessed whether damages would be an adequate remedy for the plaintiff. The central issue was whether the plaintiff's conditional offer of refinancing and the disputed amount of the debt justified an exception to the general rule.

The court found that the balance of convenience did not favour the grant of an interlocutory injunction. The bank had taken reasonable steps to market the properties, and the plaintiff had not shown a strong enough case to warrant an exception to the general rule. The court concluded that the amount of the debt being in dispute and the conditional offer of refinancing did not sufficiently shift the balance of convenience in favour of the plaintiff. Consequently, the application for an injunction was dismissed.

The court did not make any specific orders beyond dismissing the application for an interlocutory injunction. The decision emphasised the need for the plaintiff to address the balance of convenience and the adequacy of damages as a remedy in any future applications. The court's ruling underscored the stringent requirements for granting an injunction in mortgage disputes, particularly in cases involving disputed debt amounts and conditional refinancing offers.

Orders