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Yusofzai v Andask Pty Ltd

Yusofzai v Andask Pty Ltd

Case [2019] NSWSC 124 28 February 2019

Injunction

Mortgages & Security Interests

Property Law

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Supreme Court

New South Wales

Medium Neutral Citation: Yusofzai v Andask Pty Ltd [2019] NSWSC 124
Hearing dates: 15 February 2019
Date of orders: 15 February 2019
Decision date: 28 February 2019
Jurisdiction: Common Law
Before: Davies J
Decision:
1. The plaintiffs’ summons filed 15 February 2019 is dismissed.
2. By consent, the plaintiffs pay the defendant’s costs fixed in the sum of $6,583.50.
Catchwords:
INJUNCTIONS – Injunction to restrain mortgagee’s power of sale – application brought the afternoon before scheduled auction – where notice of default had been issued under s 57(2)(b) Real Property Act 1900 (NSW) and s 92 Conveyancing Act 1919 (NSW) – whether the notice had been properly served – whether the notice was misleading or invalid – where the notice did not express an immediate intention to exercise mortgagee’s power of sale – notice neither misleading nor invalid – whether the lender waived its rights by earlier representations – doctrine of election – no evidence of inconsistent rights – no waiver – balance of convenience – injunction refused
MORTGAGES AND SECURITIES – mortgages - duties, rights and remedies of mortgagee - power of sale – scope of application of National Credit Code – whether notice should have been given under s 88 National Credit Code – debtor not a natural person nor strata corporation – mortgage a genuine commercial arrangement – no notice required under s 88
Legislation Cited: Conveyancing Act 1919 (NSW) ss 92, 170
National Credit Code ss 5(1), 88
Real Property Act 1900 (NSW) ss 57, 58
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Australia and New Zealand Banking Group Ltd v Bragg (No. 3) [2017] NSWSC 208
Darren John Ciavarella v Hargraves Secured Investments Ltd [2015] NSWSC 865
Morlend Finance Corp (Vic) Pty Ltd v Westendorp [1993] 2 VR 284
Newborough (Lord) v Jones [1975] 1 Ch 90
Northumbrian Ice Cream Co Ltd v Breakaway Vending Pty Ltd [2006] NSWSC 1216
Sargent v ASL Developments Ltd (1974) 131 CLR 634
The Commonwealth of Australia v Verwayen (1990) 170 CLR 394
Websdale v S & JD Investments Pty Ltd (1991) 24 NSWLR 573
Category: Principal judgment
Parties: Waise Yusofzai (First Plaintiff)
Melissa Yusofzai (Second Plaintiff)
Andask Pty Ltd (Defendant)
Representation:
Counsel:
K Madgwick (Plaintiffs)
D Turner (Defendant)
Solicitors:
Saurabh Gupta (Plaintiffs)
Assured Legal Solutions (Defendant)

File Number(s): 2019/51529

Judgment

On 15 February 2019 I refused to grant an injunction in favour of the plaintiffs to prevent the sale of land owned by them at 14 Anzac Avenue, Denistone. The auction was scheduled to take place at 11:15am on 16 February 2019. These are my reasons for so doing.
The plaintiffs bought the land in about March 2014 for $850,000 as an investment. There was a dilapidated house on the land and they were intending to renovate it and reside there with their three children.
In mid-2014 the first plaintiff, Mr Yusofzai, started his own real estate business. He and the second plaintiff, his wife, operated the business through a company, Y…

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 Yusofzai v Andask Pty Ltd

Details

AGLC: Yusofzai v Andask Pty Ltd [2019] NSWSC 124
Case: [2019] NSWSC 124
Decision Date: 28 February 2019

CaseChat Overview and Summary

The case of Yusofzai v Andask Pty Ltd involved a dispute regarding an application for an injunction to restrain the power of sale exercised by a mortgagee, Andask Pty Ltd. The application was brought by the mortgagor, Yusofzai, on the afternoon before a scheduled auction. The central issue revolved around the validity of a notice of default issued by Andask under sections 57(2)(b) of the Real Property Act 1900 (NSW) and 92 of the Conveyancing Act 1919 (NSW). Yusofzai argued that the notice was misleading or invalid, and sought to prevent the auction from proceeding. Additionally, Yusofzai contended that Andask had waived its rights by prior representations, invoking the doctrine of election. The court examined whether the notice was properly served and whether it expressed an immediate intention to exercise the power of sale.

The court held that the notice was neither misleading nor invalid, as it did not express an immediate intention to exercise the power of sale. There was no evidence presented that would suggest Andask had waived its rights through inconsistent representations, and therefore, the doctrine of election did not apply. The court further considered whether a notice should have been given under section 88 of the National Credit Code, given that the mortgage was a genuine commercial arrangement and the debtor was not a natural person or a strata corporation. The court concluded that no notice was required under section 88. Weighing the balance of convenience, the court found that the application for an injunction should be refused.

The court's decision was based on the lack of evidence to support Yusofzai's claims that the notice was misleading or invalid and that Andask had waived its rights. The court did not find it necessary to grant the injunction as the balance of convenience did not favour Yusofzai. Consequently, the auction proceeded as scheduled, and the injunction was not granted.

Orders