Goater v Commonwealth Bank of Australia

[2014] NSWCA 265

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Interlocutory injunctions
3. › Injunction to restrain mortgagee's power of sale
4. › Whether balance of convenience favoured grant of injunction
5. › Whether sale imminent
6. › Whether refusal would render appeal nugatory
1. Mortgages
2. › Power of sale
3. › Injunction to restrain exercise of power of sale
4. › Requirement to pay mortgage debt into court
5. › General rule in Inglis v Commonwealth Trading Bank of Australia
6. › Exceptions to the rule
7. › Whether dispute as to validity of mortgage or power of sale
8. › Whether breach of settlement agreement engages exception
9. › Real Property Act 1900 (NSW), s 57(2)(b)
1. Equity
2. › Interlocutory injunctions
3. › Undertaking as to damages
4. › Whether impecuniosity of applicant constitutes exceptional circumstance dispensing with requirement for undertaking
1. Practice and Procedure
2. › Default judgment
3. › Setting aside default judgment
4. › Whether power to set aside default judgment survives execution of writ of possession
5. › Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 36.16

Quick Take

A dispute as to whether a mortgagee is contractually precluded from exercising its power of sale by reason of a settlement agreement does not fall within the recognised exceptions to the Inglis rule requiring payment of the mortgage debt into court as a condition of restraining the power of sale. The exceptions are confined to cases where the validity of the mortgage, the breach giving rise to the notice, or the validity of the notice is in issue, or where the power of sale is being exercised for an improper purpose. Impecuniosity alone does not constitute an exceptional circumstance dispensing with the usual undertaking as to damages.