APPEALS — application for leave to appeal — interlocutory injunction pending appeal — where primary judge dismissed application to set aside default judgment — where mortgagee seeks to exercise power of sale pursuant to default judgment — whether arguable case on appeal — balance of convenience — undertaking as to damages of little value — application dismissed
Quick Take
1Where an applicant seeks interlocutory injunctive relief to preserve the subject matter of an appeal from a refusal to set aside default judgment, the court undertakes only a preliminary assessment of whether the proposed grounds of appeal are arguable, and even a case that may satisfy the arguable threshold will not warrant relief where the balance of convenience substantially favours the respondent.
2An undertaking as to damages that is of little practical value — because the applicant's only substantial assets are the very properties the subject of the injunction — weighs against the grant of interlocutory relief, particularly where the applicant resists any condition requiring security or interim payments and the respondent faces increasing prejudice from accruing interest and a declining property market.
3In evaluating the balance of convenience on an application to restrain a mortgagee's exercise of power of sale pending appeal, the court may have regard to the applicant's extensive history of non-engagement with proceedings, the risk of loss of current sale offers, the growing shortfall between debt and property values, and the applicant's failure to offer any form of security or interim payment.
