Injunction to Restrain Sale

Harvey v Perpetual Nominees [2009] NSWSC 1379

This involved a mortgage for $1.8 million on an interest only basis secured on a hotel. Receivers were called in after interest payments were missed. The receiver sold the property at auction for $1.3 million in October 2009. Subsequently the borrower sought an injunction to restrain the completion of the sale on the grounds that …

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Serobian v CBA [2009] NSWSC 1312

This involved a woman who had already lost separate proceedings for possession seeking an injunction against the CBA selling her property. The basis for the injunction was a vague allegation of fraud against the bank. The judge refused the injunction noting: The High Court in Inglis v Commonwealth Bank of Australia (1971) 126 CLR 161 …

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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 …

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Australian Barter Currency Exchange v Uniting Church [2009] NSWSC 607

The director of the borrowing companies borrowed $14 million from the lender in four separate loan transactions. The loans were secured by mortgages over 29 properties. The director was sent to prison for two and a half years and this caused the loans to go into default and his companies to go into liquidation. Upon …

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Gippsreal v Hanna [2009] NSWSC 169

Perpetual Trustee held the first mortgage and exercised their power of sale. In the meantime Gippsreal who claimed a second ranking equitable mortgage placed a caveat on title. This was sought to be lapsed by Perpetual but was extended by court order. Gippsreal later provided a withdrawal but the LPI wanted proof the extension order …

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Solid Holdings v IMFML Finance [2008] NSWSC 573

In this case the borrower sought an injunction to stop the lender exchanging contracts. The borrower conceded the lender had the power to sell (having properly served a s57(2)(b) notice) and there was no argument that the sale was being conducted improperly. Accordingly the borrower was obliged (on the basis of an old common law …

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H Developments v Cronin [2007] NSWSC 1314

In this case the borrower was a property developer (H Developments). The lender was Suncorp Metway whose receiver (Cronin) took possession of the security property and sold it. On the day the sale was due to complete the the borrower sought an injunction to prevent the settlement on two grounds: Funds were imminently available to …

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Buildx Constructions v Perpetual Trustee Company [2007] NSWSC 1282

This was an urgent application seeking to restrain a mortgagee auction brought on the very morning the property was due to be auctioned. The borrower (Buildx) was represented by its director Mr Maamari. The injuction was sought on the grounds that the property had been sold to Mr Maamari’s two 20 year old children who …

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Aymban v Grove Park [2007] NSWSC 1089

In this case the lender held a second mortgage. When the mortgage went into default the director of the borrowing company, Mr Comer, procured a transfer of the first mortgage to himself. He then sold the property (pursuant to a power of sale) to his son. The lender sought a freezing order against the Mr …

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