Ciavarella v Hargraves Secured Investments [2015] NSWSC 865

The borrower sought a last minute injunction to restrain the mortgagee exercising its power of sale by auction.

The court refused for the following reasons:

  1. The unexplained delay;
  2. The lack of evidence as to any refinance;
  3. The fact the borrowers had already breached a previous settlement agreement reached at a farm debt mediation by refusing to auction the farm or provide vacant possession without explanation;
  4. The serious risk that the debt would exceed the properties’ value.

The court found that given there was no likely possibility of a refinance and the properties would have to be sold in any event, there was no benefit in having the equity further eroded by delaying the auctions even assuming there was a serious question to be tried as to the validity of the section 57(2)(b) Notice, which allegedly overstated the monies owing (which the court did not view as being a particularly strong argument in any event).

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