Injunction to Restrain Sale

Kowalczuk v Accom Finance [2007] NSWCA 225

In this case Bransgroves acted for the lender. The borrower filed a Contracts Review Act defence and lost. The lender then commenced marketing the security. The borrower filed an appeal and sought an injunction stopping the auction until after the appeal had been determined. Justice Campbell of the Appeal Court granted the injunction noting the …

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Elite Apartments v Arab Bank Australia [2007] NSWSC 521

In this matter the borrower sough to restrain the lender from exercising power of sale. The evidence showed the borrower had received a winding up notice and had not sought to set it aside. That was an act of default under the mortgage. Moreover the court determined it was a non-monetary default for the purposes …

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Lesic v Gippsreal [2007] NSWSC 426

In this case the borrower sought an urgent injunction to prevent a sale due to take place that very afternoon. A stay was granted for three days upon the grounds that the Judge did not have time to absorb the material before him and because the borrower denied receiving the s57(2)(b) notice. His Honour noted: …

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Arraf v Jonvana Enterprises [2006] NSWSC 1432

In this case the borrower made an urgent application to the court to restrain the lender from selling the land as the mortgagee exercising power of sale. The borrower claimed he was not in default as he had made arrangements for a third party to pay the mortgage. Justice Palmer dismissed the plaintiff’s application because …

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Starceavich v Swart [2006] NSWSC 960

Swart advanced sum of $45,000 to Starceavich on an unregistered mortgage. After Starceavich defaulted Swart seized possession and tried to sell. Starceavich sought an order that Swart return possession pending a decision on a defence raised under the Contracts Review Act and on the basis of unconscionable dealing. The court considered whether or not Swart …

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Parist Holdings v Perpetual Nominees [2006] NSWSC 599

In this case Hamilton J considered an injunction application by a mortgagor to prevent the mortgagee proceeding with a power of sale. Ground one – impending refinance His Honour noted that: As the matter has gone on, the possibility or immediacy of the plaintiff obtaining alternative finance has declined somewhat. The best that can now …

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Lets We Forget v Westpac [2005] NSWSC 1165

The plaintiff company (“Lets”) borrowed money from Westpac, with the loan secured by mortgages on two properties owned by Lets. The director of Lets was a guarantor of the loan. Lets applied to the Court for an injunction restraining Westpac and its agents from exercising its power of sale. Prior to exercising its power of …

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E & P Developers v D J Capital Solutions [2005] NSWSC 1110

The developer mortgaged land to the defendants as security for a loan to carry out the development. The developer applied to the Court ‘at the eleventh hour’ seeking to restrain the lenders from selling the land.  The developer said the injunction was justified for three reasons: Non-service of a s 52(2)(b) notice Estoppel by conduct …

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Tekinvest v Lazarom [2004] NSWSC 940

This was an application by a borrower for an interlocutory injunction restraining a lender from exercising a power of sale. The Plaintiff was the registered proprietor of a commercial site at Granville (“the Property”). The Plaintiff purchased the Property from the Defendant in December 2001 for $1,928,000. The purchase price was payable as to $1,000 …

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