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:
- The unexplained delay;
- The lack of evidence as to any refinance;
- 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;
- 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).