The borrower tried to get an injunction to stop the auction of the security properties on the basis that he had not been properly served. The borrower’s premises had two street addresses (there being two roads that bounded the property). Although the lender had always written to him at one address, it had served the notice at the other address. He argued that the reason he needed the injunction was because if it was auctioned the property would be sold at a considerable discount to its true value.
The Judge refused to give the borrower an injunction. He found that the borrower had been properly served because:
- The address used by the lender was the address that the Shire council applied to the property; and
- The notice had never been returned undelivered to the lender; and
- The service was in the context that the borrower had lived in that rural township for many years and mail had been addressed to him there at both addresses for a decade and it was virtually certain that the mail deliverer knew both addresses were to go to the same property.
The Judge confirmed that where there are two valid addresses for a property, a notice will comply with the Conveyancing Act if it is addressed to either one and therefore the notice was validly served by the lender.
The Judge also said he was not satisfied about the borrower’s argument that he would suffer damage in a reduced sale price, as it was not possible to know this before any auction had taken place. Further, the borrower was not in a position to offer the Court any undertaking as to damages suffered by the lender given all his assets had been seized and he had no real prospect of being able to redeem his obligations even if an injunction was granted – other than his argument that he may win Lotto.