McMahon v Permanent Custodians [2013] NSWCA 201

The borrowers defaulted. The defaults were subject to the Farm Debt Mediation Act and there had been lengthy proceedings during which the borrowers agreed to consent orders giving possession to the lender. The borrower then attempted to set aside those consent orders on the basis that enforcement action had been prohibited because there was no valid mediation certificate. The judge had dismissed their application and confirmed the consent orders were valid. The borrowers appealed and asked the Court of Appeal for an injunction to stop the lender from selling the remaining security property (several properties had already been sold).

The lender was not present at the hearing of the application for the injunction. The judge allowed the injunction for a few days only, to allow the lender to be present at court. The judge was of the opinion that the potential disadvantage that might flow from the lender not being able to proceed with selling the properties over the weekend was limited.

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