The borrower defaulted on its mortgage and proposed selling the secured property by auction to repay its loan. The lender requested full payment of its debt and legals before granting a discharge, in default of which it claimed possession and appointed receivers. The borrower challenged the lender’s claim for possession on the basis that it was unconscionable for the lender to have lent the borrower money in breach of section 12CB of the ASIC Act and sought to have it set aside. The borrower also sold the property subject to the consent of the receivers and the lender refused to consent unless it was first repaid the full amount of its debt plus its estimated legal fees. The borrower sought to force the lender to agree to the sale by seeking a mandatory injunction ahead of the trial. The court noted that the grant of an injunction would effectively determine the lender’s legal rights to insist on full payment in advance of the trial.

The court noted no evidence to support their case at trial and refused the injunction.

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Kate Cooper joined Bransgroves Lawyers in 2006 and has been a partner since 2009. Kate specialises in Supreme Court litigation in the fields of mortgage enforcement, professional negligence and originator/funder disputes. She has an extensive transactional practice including, origination deeds, aggregation deeds, commercial and construction lending and mortgage securitisation.

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