Bolitho v Permanent Custodians [2009] NSWSC 580

The borrower obtained a temporary injunction against the lender restraining it from proceeding with the auction. The injunction was then extended to allow further time to refinance. With the failure to do so, the injunction was discharged and the property was sold by the lender. The borrower claimed that the sale price, $740,000, was only one third of the real value of the property.  The borrower sought an injunction restraining the registration of a transfer of title and a declaration that the sale was invalid and void.

The application was rejected on the grounds:

  1. Damages would serve as an adequate remedy if the allegation was true;
  2. There was no suggestion that the successful bidders were aware of the alleged fraudulent devaluation of the property.

The borrower managed to bring the matter before the Court of Appeal on that very day, with the decision being reported Bolitho v Permanent Custodians Limited [2009] NSWCA 168. The Court of Appeal agreed with the trial judge.

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