Albarran (Liquidator) v Kimberly Pearl Tours Pty Ltd, in the matter of Kimberley Pearl Tours Pty Ltd [2026] FCA 877 — Banking And Financial Institutions — Barrister AI
Albarran (Liquidator) v Kimberly Pearl Tours Pty Ltd, in the matter of Kimberley Pearl Tours Pty Ltd
application for interlocutory injunction to restrain exercise of power of sale
Quick Take
1A term requiring payment of a higher interest rate (48% p.a.) upon default, structured as acceptance of a lower rate conditional on no default, is reasonably arguable as an unfair term under s 12BG of the ASIC Act and as a penalty following Andrews and Paciocco, notwithstanding the long-established semantic distinction between penalty clauses and incentive discounts
2Where a statutory unconscionability claim under s 12CB of the ASIC Act is clearly arguable and challenges the enforceability of the security instrument itself, the Inglis rule requiring payment into court does not apply inflexibly; the court's statutory injunctive power under s 12GD is not confined by equitable principles and the terms of any restraint are moulded to the circumstances including the risk of injustice from grant or refusal
3Appointment of receivers to guarantors' property for the purpose of pressuring refinancing rather than realising secured property, coupled with insistence on payment of disproportionate remuneration and a threat to sell secured assets below market value, is reasonably arguable as unconscionable conduct and breach of receivers' duties of good faith and proper purpose
