Lesic v Gippsreal [2007] NSWSC 426

In this case the borrower sought an urgent injunction to prevent a sale due to take place that very afternoon. A stay was granted for three days upon the grounds that the Judge did not have time to absorb the material before him and because the borrower denied receiving the s57(2)(b) notice. His Honour noted:

I am reminded … of the general rule that the amount owing under the mortgage must be paid into Court as the price of injunctive relief restraining a sale. However, I recently summarised the up to date treatment in the courts of the principle of law in this regard in Parist Holdings Pty Ltd v Perpetual Nominees Ltd [2006] NSWSC 599. Suffice it to say that that judgment reminds by reference to the judgment of Sugerman J in Harvey v McWatters (1948) 49 SR(NSW) 173 at 174, 176 that the ordinary rule does not apply in a case where there is a serious question to be tried as to whether the power of sale is presently exercisable at all.

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