Fitzsimons v CBA [2009] NSWSC 1255

Proceedings for possession were resolved by the parties entering into a deed of release with provision for the lender to take possession of the security and sell it. The borrower then had a change of heart and sought an injunction preventing the sale and to raise new defences based on the Contracts Review Act. The borrower said it would be unconscionable for the lender to rely on the deed. The judge refused the injunction noting:

I do not understand in those circumstances why it would be unconscionable for the defendant to rely upon the terms of a deed of release entered into for the purpose, one would think, of avoiding just such a claim as is now made.

Also… if a mortgagor is to restrain the exercise of a mortgagee’s power of sale, the mortgagor must pay into court the amount sworn to by the mortgagee as the amount owing; Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161

This is not a case in which the plaintiff is claiming that she can redeem the mortgage within a fairly short time by re-financing or selling the property and thereby raise a sufficient amount to pay the amount claimed by the mortgagee (compare Parist Holdings Pty Ltd v Perpetual Nominees Ltd [2006] NSWSC 599).

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