Banksia Mortgages v Croker [2010] NSWSC 1177

The borrowers rushed to Court on the day of the auction and sought an injunction to prevent the lender selling the property. The borrowers were dissatisfied with the lender’s marketing campaign. They were also dissatisfied with the agents appointed on the sale and the sale by auction rather than by tender. They also had advice that the value of the securities was higher than that anticipated by the mortgagee. They argued that a shortfall in market value of up to $2 million might result from the proposed sale.

The judge applied Inglis v Commonwealth Trading Bank of Australia :

A rule long established, in relation to applications to restrain the exercise of a power of sale, is that such an injunction will not be granted unless the amount of the mortgage debt be paid into Court.

As the borrower had not paid the mortgage debt into Court the injunction was refused.

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