Perpetual Nominees v Salad Express [2013] NSWSC 1127

On the day of auction, the borrower asked the Court to delay because it had obtained refinance and argued that hardship would occur if the property were auctioned that day. This followed a string of earlier unsuccessful attempts by the borrower to refinance the loan.  The lender argued that the refinance offered was not unconditional and that the borrower had not been successful on other occasions when time had been granted for refinancing.

The Court refused the application to defer the auction. It found that the refinance offer was not in fact unconditional (although it used that word) because it attached several conditions to the letter of offer. The Court also stated that although the public auction was not in the interests of the borrower, that was hardly the point when the lender had a legal right to sell the property and ample time had already been afforded to the borrower to refinance.

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