Sellers v Flinn [2012] VSC 132

The bank provided a loan to a farmer secured by a mortgage over two properties and a stock mortgage over 700 head of cattle. The borrower defaulted and the bank appointed a receiver. The borrower moved the cattle to another property leased by the borrower. When the receivers attended to remove the disputed stock, they were allegedly threatened by the borrower with a gun and verbally abused. The lender sought declarations as to the ownership of the disputed stock and an injunction to restrain the borrower from selling, removing or dealing with the stock.

The borrower’s father claimed to own the disputed stock. However the judge held:

In my view, the evidence relied upon by the father was not credible and failed to establish that he was the owner of the disputed stock. The father had ample opportunity to provide evidence as to his claim for ownership of the disputed stock and failed to do so. Further, the father could provide no contemporaneous documentary evidence as to his ownership of the disputed stock.

The court found that the bank had made out a prima facie case and noted that damages would not suffice as the safety of its agents attending on the properties was at real risk, the welfare of the cattle had been placed in jeopardy and the value of the mortgaged stock, if not properly maintained, would diminish. Further, there were serious doubts as to whether an award for damages could be met by the borrower. The court also found that the balance of convenience favoured the injunction. The injury the bank would suffer if an injunction were not granted would far outweigh the injury the borrower would suffer by the granting of the injunction. The bank needed to realise the value of the stock as soon as possible. The court granted the injunction.

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