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[2009] NSWSC 1379
defendant. Interlocutory injunction application dismissed (paragraphs 6 and 9 of the Originating Process, insofar as they sought interlocutory injunctive relief) and defendants' costs of the application...
The plaintiffs sought an interim injunction to stop completion of a sale of their mortgaged hotel after receivers sold it at auction. The court found the plaintiffs' evidence of wrongdoing by the mortgagee/receivers thin, and their claimed refinancing offer conditional and not an unconditional immediate means to pay out the debt. Because the purchaser was bona fide, settlement was imminent, and the mortgagee was not provided full monetary protection, the court refused the injunction and ordered defendants' costs. The remainder of the proceedings were listed to the Registrar.
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The plaintiffs, Ms Sharyn Enice Harvey (first plaintiff) and Polly-K Pty Ltd (second plaintiff), were mortgagors of the Commercial Hotel at Boolaroo under a $1.8 million interest-only loan entered into on 21 December 2007 [2]. By 2009 there was a repeated history of late and missed interest payments, and a s 57(2)(b) mortgagee notice had been issued [2]. On 1 September 2009 the mortgagee (Perpetual Nominees Ltd and its associates) appointed receivers and managers to the hotel and property [3]. Those receivers caused the hotel to be marketed and sold at auction on 29 October 2009 for $1.31 million, an amount which was less than the indicative payout figures supplied by the receivers' solicitors (circa $1.74–1.95 million) and less than the outstanding debt [4].
The plaintiffs discovered the proposed sale in early October but did not take action until after the auction and more than two months after becoming aware of the sale process [3], [7]. They claimed a right to protect their equity of redemption and sought an interlocutory injunction to restrain completion of the sale, asserting a refinancing offer from a company called Nationwide Capital that could allegedly provide the funds to redeem the mortgage [11]–[15]. The plaintiffs also complained about alleged misstatements in payout figures and about the sale procedure and conduct of the receivers [5], [6], [8].
At an ex tempore hearing on 2 December 2009 Austin J considered the interlocutory application. He found the evidence of breach of mortgagee/receiver duties thin, and the alleged refinancing offer conditional and therefore not an unconditional offer to redeem; he also noted the purchaser was a bona fide purchaser and settlement was imminent [9], [12]–[18]. Applying the principle in Inglis that equity will not ordinarily restrain a sale without the mortgagee being provided full protection, and weighing balance of convenience and the doubtful utility of the plaintiffs' undertaking as to damages, the court refused the interlocutory injunction and ordered costs for the defendants [19]–[30].
Three core elements drove the decision.
Serious question to be tried: The court considered whether the plaintiffs had shown a serious question to be tried that the mortgagee or receivers breached duties in exercising the power of sale or under s 420A of the Corporations Act. Austin J described the plaintiffs' evidentiary case as "rather thin" on breaches and proceeded only on an assumption, for present purposes, that a serious question might exist [8]–[9]. The thinness of the evidentiary foundation reduced the weight of the plaintiffs' case on interlocutory relief.
Adequacy of the offer to redeem: Central to the decision was whether the plaintiffs had offered adequate protection to the mortgagee. Austin J applied the principle derived from Inglis: equity ordinarily will not restrain a mortgagee's sale unless the mortgagee is provided with the amount it claims is due, typically by payment into court or an equivalent immediate, unconditional offer to pay [19], [21]. The Nationwide letter of 27 October 2009 was conditional, envisaged due diligence, and proposed that Nationwide acquire a 50% shareholding, facts demonstrating that substantial further steps would be required before any cash would be made available [12]–[13]. Oral assurances on auction morning were unsupported by independent evidence from the person giving the assurance, and the court treated them with caution [14]–[17]. Consequently the plaintiffs had not shown an immediate, unconditional capacity to redeem.
Balance of convenience and protection of bona fide purchasers: The hotel had already been sold and settlement was imminent (evidence suggesting settlement on 7 December 2009) [18]. The purchaser was shown to be a bona fide purchaser; the court therefore had to be "particularly careful" before granting relief that would disturb third party rights [18], [21], [26]. The plaintiffs' undertaking as to damages was of doubtful value given the likely substantial claim against them and the risk of liquidation of the second plaintiff. On balance the inconvenience and prejudice to the mortgagee and the bona fide purchaser outweighed the plaintiffs' interests [21], [23], [26], [28]. These factors together compelled refusal of the interlocutory injunction.
Before this decision, the governing principles on interlocutory injunctions to restrain mortgagee sales were established by Inglis v Commonwealth Trading Bank and subsequently considered and applied in New South Wales decisions such as Parist, Grose, Solid Holdings and Fitzsimons. That line of authority articulates that a mortgagor seeking injunctive relief must provide complete protection to the mortgagee, typically by payment into court or an unconditional offer to pay, because equity will not destroy the mortgagee's security without full protection.
Austin J reaffirmed those core principles, treating the Inglis proposition as central to the analysis and noting that some exceptions or controversies exist about the precise formulation in authority, but not deciding those questions in this case [19]–[20]. He also adopted the practical approach that where bona fide purchasers have intervened, courts must be particularly cautious and the balance of convenience will usually disfavour interlocutory relief unless the mortgagee's protection is assured [18], [21]–[22]. Thus the decision stands as an application of Inglis principles to a fact pattern where (a) sale had completed, (b) purchaser was bona fide, and (c) the mortgagor's alleged offer to refinance was manifestly conditional.
"it would be unjust to deprive the mortgagee of the fruits of exercise of its rights under the power of sale... where it was not given complete protection" [21].
"the Nationwide letter of 27 October 2009 falls substantially short of being an unconditional offer to refinance" [13].
"Given the intervention of a bona fide purchaser, the Court has to be particularly careful about granting interlocutory relief that would interfere with that party's rights" [18].
"the evidence... raises some real doubt as to whether she and the second plaintiff would be able to meet a claim for damages" [23].
"All in all... the balance of convenience strongly points against the court granting an interlocutory injunction" [28].
Each of these passages anchors a step in the court’s reasoning: insufficiency of the redemption offer, protection of third party purchasers, and assessment of the practical value of undertakings as to damages.
This decision will be directly useful where a mortgagor seeks interlocutory injunctive relief to restrain completion of a mortgagee sale and facts include:
In those circumstances Harvey v Perpetual Nominees is a clear authority for refusing interlocutory relief unless the mortgagee is afforded complete monetary protection or an unqualified immediate offer to redeem is proven.
This decision follows and applies the established Inglis line. Austin J explicitly relied on Inglis and recent NSW authorities (Solid Holdings, Parist, Fitzsimons, Grose) to situate his reasoning about payment/protection and the balance of convenience [19]–[22]. The judgment recognises that some authorities suggest possible exceptions to Inglis, but the judge did not extend the law, he left open the question whether less than payment into court (e.g. an absolute unconditional offer to refinance) might in exceptional circumstances suffice [20]. Practitioners should note Harvey as an application of conservative equitable principles in the face of a bona fide purchaser and conditional refinancing offers; later courts will treat it as consistent with the cautious approach required in these cases.
Extent of acceptable alternatives to payment into court: Austin J acknowledged it may be possible that something less than payment into court would suffice (for example an absolute and unconditional offer to provide immediate refinance), but he did not decide the point [20]. The precise contours of what constitutes adequate 'complete protection' short of payment into court remain an open question.
Effect of late but prompt mortgagor challenge: Here plaintiffs delayed more than two months after learning of the proposed sale and after auction before commencing proceedings [3], [7]. How timing and promptness will be weighed in closer cases remains fact-sensitive and unresolved in general terms.
The standard and admissibility of oral assurances on the auction day: Austin J treated the oral assurances from Nationwide's purported agent with caution in the absence of the agent's affidavit [14]–[17]. The extent to which contemporaneous oral communications can ever substitute for an unconditional written offer deserves further judicial elaboration.
The interplay between unconscionability allegations and the Inglis rule: The judge observed that the plaintiffs' unconscionability argument was not seriously arguable on the material before him [6]. If stronger evidence of unconscionable conduct by mortgagee or receivers exists, courts may be prepared to relieve mortgagors even where full monetary protection is not immediately available; the limits of that exception remain to be clarified.
Treatment of undertaking as to damages where the mortgagor is a corporate entity facing imminent liquidation: Austin J declined to assume the inevitability of liquidation or liquidator conduct [27], but the practical value of undertakings in such circumstances is an unsettled practical issue for future cases.
Practitioners should take from Harvey a pragmatic message: where a mortgagee sale has completed and a bona fide purchaser is involved, mortgagors need either immediate, unconditional, documented capacity to redeem or extremely strong evidence of serious misconduct by the mortgagee/receivers to obtain interlocutory protection. Absent those elements, courts will generally refuse interlocutory interruption to completed sales.
CITATION : Harvey v Perpetual Nominees Ltd [2009] NSWSC 1379
JURISDICTION : Equity Corporations List
DECISION : Application for interlocutory injunction denied
CATCHWORDS : MORTGAGES - exercise of power of sale - injunction to restrain mortgagee completing after sale at auction to a bona fide purchaser - rule in Inglis v Commonwealth Trading Bank
Chong v Chanell (No 2) [2009] NSWSC 1066 Fitzsimons v Commonwealth Bank of Australia [2009] NSWSC 1255 CASES CITED : Grose v St George Commercial Credit Corporation Ltd (1991) NSW ConvR 55-586 Inglis v Commonwealth Trading Bank of Australia (1971) 126 CLR 161 Parist Holdings Pty Limited v Perpetual Nominees Ltd [2006] NSWSC 599 Solid Holdings v IMFML Finance [2008] NSWSC 573
Sharyn Enice Harvey (First Plaintiff) Polly-K Pty Ltd (Rec & Mgr Apptd)(Second Plaintiff) Perpetual Nominees Ltd (First Defendant) PARTIES : Equitable Asset Management (Australia) Ltd (Second Defendant) Paul Gidley in his capacity as a joint Rec & Mgr of Polly-K Pty Ltd (Third Defendant) James Shaw in his capacity as a joint Rec & Mgr of Polly-K Pty Ltd (Fourth Defendant)
COUNSEL : A Narayan (Plaintiffs) D R Stack (Defendants)
SOLICITORS : Heidtman & Co (Plaintiffs) Kemp Strang Lawyers (Defendants)
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORPORATIONS LIST
5522/09 SHARYN ENICE HARVEY & ANOR V PERPETUAL NOMINEES LTD & ORS JUDGMENT (ex tempore, revised on 7 December 2009) 1 HIS HONOUR: The plaintiffs today move for relief in terms of paragraphs 3 and 6 of their Originating Process filed on 30 November 2009. Paragraph 3 seeks leave under ss 236 and 237 of the Corporations Act 2001 (Cth) to bring the present proceedings in the name of the second plaintiff. For reasons that will emerge, I have decided that the application for leave ought not to be determined today. Paragraph 6 is an application for an interlocutory injunction, upon the plaintiffs giving their usual undertaking as to damages, to restrain the defendants from completing the sale of a property known as the Commercial Hotel at Boolaroo. The first and second defendants are mortgagees of the property and the third and fourth defendants are joint receivers and managers appointed by the mortgagee to the hotel business and to the property. 2 The loan documentation for the mortgage, for an advance of $1.8 million on an interest only basis, was entered into on 21 December 2007 for a period of three years. The evidence indicates that the plaintiffs failed to make an interest payment on 7 December 2008, but subsequently made the payment on 29 December 2008. A s 57(2)(b) mortgagee notice was issued to the plaintiffs. On 7 March 2009 there was another failure by the plaintiffs to make an interest payment, which was subsequently paid, and there was another failure on 7 June 2009, and a partial payment on 24 June 2009. Therefore, by the beginning of September 2009 there was some history of late payment or non-payment of interest payable under the loan instrument. 3 On 1 September 2009 the lender appointed receivers and managers, namely, the third and fourth defendants. The receivers and managers then made investigations and proceeded to implement the sale of the Commercial Hotel, over which the mortgage extends. According to the first plaintiff's affidavit, she became aware of the proposed sale about four weeks before the auction was held, that is in early October 2009. There is no evidence that she complained about the proposed sale at that time or that she made any complaint about the sale procedure that was adopted in the ensuing weeks. 4 The Commercial Hotel was sold at auction on 29 October 2009 for $1.31 million. At that time more than that amount was outstanding under the mortgage loan. By a letter which appears to have been transmitted on 6 November 2009, and is at page 479 of the exhibit to the first plaintiff's affidavit of 30 November 2009, the solicitors for the plaintiffs required an urgent pay-out figure, said to be required by a proposed financier. It appears the figure supplied in response to that request was a total indicative pay out figure of $1,958,225. Previously, by letter dated 5 September 2009, the solicitors for the receivers had said that the indicative pay out figure on 20 September 2009 was $1,744,156. Whether the figure was the larger or the smaller figure, it was clearly much more than the amount realised at the auction. 5 The plaintiffs drew attention to some evidence showing that certain equipment used in relation to the hotel was sold for $249,299.50 and that the proceeds of sale were forwarded by a trust account cheque by the plaintiffs' solicitors to the receivers on 23 September 2009. The plaintiffs complained that that amount does not appear to have been taken into account in the subsequent statements of the total indicative pay-out figure supplied on about 15 September and 6 November 2009. That may be so and is not a matter for me to determine today. 6 The appropriate course today is to assume that the pay-out figure stated on 6 November should be reduced by that amount so that the approximate amount owing was $1.65 million at that time. The plaintiffs contended that the receivers were acting unconscionably in misstating the amount of the pay out figure. On the evidence before me today, there does not seem to be a seriously arguable case of unconscionability with respect to that matter, as opposed to, for example, simple mistake. 7 The present proceedings were commenced when an application for abridgement of service was made to me last Monday, 30 November 2009. That was more than two months after the first plaintiff became aware of the proposed auction and more than a month after the auction in fact took place. The Originating Process seeks relief of various kinds, but importantly, for present purposes, to restrain completion of the sale of the hotel. 8 One of the issues before me today is whether the evidence read on the interlocutory application, namely, the affidavit of the first plaintiff and the exhibit to that affidavit shows that there is a serious question to be tried on the issue whether the method of conducting the auction amounted to a breach of the mortgagee's duties in respect of the exercise of the power of sale and of the receiver's duties under s 420A of the Corporations Act. 9 Counsel for the defendants submitted that the evidence in the affidavit and exhibit did not rise even to the level of a serious question to be tried, and also noted that the first plaintiff had not complained about the procedure adopted for the sale of the hotel prior to the initiation of the proceedings. It seems to me that the evidence of breach of the mortgagee's duty in exercising the power of sale and concurrent breach of the receiver's duties is rather thin, on the material before me today. I think the appropriate course is to proceed on the basis, without reaching any firm conclusion, that there is a serious question to be tried on that issue. 10 In addition to complaining about the method of sale and complaining about the misdescription of the purchase price (a matter I have already dealt with) the plaintiffs submitted that equity should intervene to protect their equity of redemption, even though there is no dispute that at least a substantial part of the mortgage debt claimed is outstanding and that the mortgagee is, therefore, entitled to exercise the power of sale. 11 Essentially, the submission was that it is sufficient that the plaintiffs have offered to redeem and are in a position to redeem the mortgage in a fairly short space of time. The evidence as to the offer to redeem is as follows: On 2 September 2009 a business called Oasis Home Loans of the Sunshine Coast wrote to the solicitors for the plaintiffs confirming that the first plaintiff had engaged it as a broker to refinance her hotel. They said they were confident that they should have a formal approval for the refinancing by the end of the week. It appears, however, that no such formal approval emerged. 12 Eventually, however, a company called Nationwide Capital Pty Limited prepared a written offer concerning advances to the second defendant on the security of the hotel dated 27 October 2009. Apparently the letter was made available to the first plaintiff on 29 October, the day of the auction. The letter is curious in some respects. It appears to be taken from a form or precedent where provision is made for application and valuation fees, but as there were apparently none to be charged then zero figures are inserted in that part of the form. The amount of the advance is said to be $2 million and the amount available to be advanced is $1,978,000. That would probably be sufficient to pay out the whole of the amount claimed by the defendants if there were no other payments to be made at that stage. Curiously, one of the terms of the letter is that Nationwide Capital would acquire a 50 percent shareholding in the hotel. Additionally, the letter said: "The money advanced by Polly-K Pty Limited, the second plaintiff, is conditional upon providing Nationwide with full and frank disclosure of all of your financial details and also subject to Nationwide being satisfied by its own due diligence inquiries as to your credit rating and the information specified by you in your application for finance." 13 It seems to me that as at 29 October 2009, when this offer was communicated, quite a deal of work still remained to be done before money would be placed on the table. Apart from the due diligence inquiries to which the letter refers, including a credit rating check, there would be substantial documentation required. In particular there would need to be some documentation of the proposal for Nationwide Capital to acquire a 50 percent shareholding in the hotel. There would presumably be an issue as to whether that would be achieved by the sale or issue of shares in the second plaintiff or in some other way. I understand from the evidence that the title to the land on which the hotel stands is vested in the first plaintiff and if there were to be shares representing that value, there would be some further restructuring needed. All in all, the letter of 27 October 2009 falls substantially short of being an unconditional offer to refinance. 14 On the morning of the auction it appears that the first plaintiff signed what she called the Nationwide loan offer. According to her affidavit, paragraph 79, at about 9am she telephoned a person called Catherine Antaw of the receivers. She had a conversation in which she told Ms Antaw she had faxed a copy of the signed loan offer to their offices. There was a further discussion at 10am in which Ms Antaw requested contact particulars for someone at Nationwide who could be spoken to. 15 Then, apparently at 10.15am, the first plaintiff had a discussion with a person called Gary Mikos at Nationwide's office, and while they were speaking, a caller, apparently Ms Antaw, called Mr Mikos. According to the first plaintiff's evidence, the caller asked Mr Mikos whether he knew his letterhead was being fraudulently used and he made statements rebutting that statement, in effect. During the conversation, according to first plaintiff's evidence, Mr Mikos told the caller that the offer was genuine and the document was authentic, and that Nationwide had finished its inquiries and was completely happy with everything. She then deposed that she formed the belief, in light of what had been said, that the auction would not proceed. She did not attend the auction, and later she discovered that the auction did indeed proceed and the property had been sold. 16 As I have said, the submission made on behalf of the plaintiffs was that they were entitled to an equity of redemption, which equity would intervene to protect in circumstances where they had offered to redeem and were in a position to do so. It seems to me that the evidence to which I have referred falls short of the kind of offer to redeem that would be sufficient to satisfy a court of equity to intervene to protect the equity of redemption. 17 The evidence comprises a letter, which I have said is conditional and would require substantial steps before it could be implemented by making a cash advance, coupled with a conversation on the morning of the auction without any direct evidence about that conversation from Mr Mikos, who participated in it, or any follow up documentation that would indicate, as the plaintiffs allege, that indeed an unconditional offer was subsequently made available. It seems to me the court should treat that evidence, in the absence of a formal unconditional offer, with very great caution. The need to be cautious is of course enhanced in this case because, unlike many other cases in which the equity of redemption is sought to be protected, this is a case where the property has already been sold and completion is fairly imminent. 18 There is an indication in the correspondence that the settlement of the sale is intended to take place on 7 December 2009. There is also evidence before me that the purchaser is a bona fide purchaser. That evidence is in the affidavit of Vanessa Marquez, when she reports on a discussion she had with the solicitor for the purchasers who referred to his clients as bona fide purchasers of the hotel and she did not demur. 19 Given the intervention of a bona fide purchaser, the Court has to be particularly careful about granting interlocutory relief that would interfere with that party's rights. I received submissions concerning the so-called rule in Inglis v Commonwealth Trading Bank of Australia (1971) 126 CLR 161 and exceptions to that rule. The rule is said to be that if a mortgagor is to restrain the exercise of a mortgagee's power of sale, the mortgagor must pay to the court the amount sworn to by the mortgagee as the amount owing, or a lesser amount if it appears from the terms of the mortgage instrument that the lesser amount is due: see Fitzsimons v Commonwealth Bank of Australia [2009] NSWSC 1255. In Solid Holdings v IMFML Finance [2008] NSWSC 573 White J usefully reviewed authorities on that proposition, including the judgment of Hamilton J in Parist Holdings Pty Limited v Perpetual Nominees Ltd [2006] NSWSC NSWSC 599. There is a suggestion in the authorities that some aspects of the Inglis proposition are controversial and there may be some exceptions to it. The plaintiffs, in particular, relied on the judgment of Bryson J in Grose v St George Commercial Credit Corporation Ltd (1991) NSW ConvR 55-586. 20 It may be that something less than payment into court of the amount claimed or acknowledged to be due will suffice to permit equity to intervene to protect the equity of redemption in an appropriate case. For example, it may be sufficient, though it is unnecessary for me to decide, for the mortgagor to tender an absolute and unconditional offer to provide immediate refinance should the mortgagee withdraw the sale. At any rate, that might suffice if bona fide third parties' rights have not intervened. But here, even putting aside the problem presented by the bona fide purchaser, the evidence falls considerably short of the kind of absolute and unqualified offer to refinance that I have envisaged, for the reasons explained above. 21 Consequently, it seems to me that according to the principle underlying Inglis, if not the "rule" invoked by the plaintiffs, it would be unjust to deprive the mortgagee of the fruits of exercise of its rights under the power of sale, by granting an injunction restraining completion of the purchase in circumstances where it was not given complete protection by access to the amount that it is owed. Whether that complete protection would be by way of unqualified letter of offer or by payment into court is, as I have said, something I need not decide. 22 I note that in the Solid Holdings case White J saw the Inglis proposition as an aspect of the general issue whether there is a serious question to be tried. If the mortgagee is not offered protection, then it cannot be argued that the mortgagee has failed to act in good faith by proceeding to exercise the power of sale notwithstanding approaches made by the mortgagor. Additionally, the Inglis proposition is highly pertinent to the balance of convenience. In weighing up the factors relevant to the exercise of the court's discretion, it is highly relevant to take into account that the injunction will deprive the mortgagee of its rights temporarily, without giving the mortgagee recourse to the amount that is owed. 23 There are other matters that bear on balance of convenience in this case. One is that there seems on the facts to be some doubt about the utility of the plaintiffs' proffered undertaking as to damages. The evidence given by the first plaintiff herself raises some real doubt as to whether she and the second plaintiff would be able to meet a claim for damages in the event that the court were to prevent completion of the sale and work to keep the mortgagee out of an amount of $1.31 million for what would inevitably be a substantial period of time. Another aspect of the balance of convenience relates to competing equitable interests. 24 I was referred by counsel for the plaintiffs to Chong v Chanell (No 2) [2009] NSWSC 1066 in which reference was made to the balance of convenience considerations that arise on an application to set aside a caveat. Brereton J pointed out if he were wrong to allow the caveat to remain until ultimate determination of the matters in issue, the long term rights of the parties would be unaffected, the property would be preserved and it would remain available to satisfy the claimed interest so no one would suffer undue prejudice. On the other hand, if the caveat were to be removed wrongly, the property would be sold, the proceeds appropriated and the claimed interest would be destroyed forever. 25 By analogy, counsel for the plaintiffs submitted that if their application for an injunction were denied, the completion of the sale would take place, the property would pass to the hands of the purchaser, and the plaintiffs' claimed equity of redemption would be destroyed forever. Additionally, they submitted that, because there would be a shortfall on the sale, it would be very likely that the second plaintiff would be placed in liquidation and its prospect of pursuing a claim for damages or equitable compensation in respect of breach of the mortgagee's duties would be rendered useless, because presumably the liquidator would not take it up. 26 There are two points to make about that argument. The first is that there is no suggestion that a caveat was lodged to protect the plaintiffs' interest in this case, and moreover, the analogy with an application for extension of a caveat is misleading. Where there is a caveat on the title, the purchaser can be taken to have notice at that time of the claimed interest. Whereas, in the present case, there is no ground for contending that the purchasers were other than bona fide purchasers. This is a case where to do what the plaintiffs have asked the court to do would be to interfere with the third party rights, whereas to deny the injunction would be to leave the plaintiffs to their other remedies in terms of equitable compensation and damages. 27 The other point to make about the argument is that the court would not assume at this stage, on the evidence, that a shortfall on the sale of the property would inevitably lead to an application to wind up the second plaintiff; or that if it did, the liquidator would inevitably decline to pursue any claim for compensation that he or she might have on behalf of the company against the present defendants. 28 All in all, while there may be a serious question to be tried about some aspects of the plaintiffs' claims, the balance of convenience strongly points against the court granting an interlocutory injunction. Therefore the application for that relief in paragraph 6 of the Originating Process is dismissed. So far as paragraph 3 is concerned, the application under ss 236 and 237 of the Corporations Act, there is no urgency in dealing with that matter and I shall refer the proceedings to the Registrar for further directions. 29 I think the appropriate orders for costs is that costs of the application should be the defendants' costs in the proceedings. That is the order I shall make. 30 My orders are: 1. Paragraphs 6 and 9 of the Originating Process, in so as far as they seek interlocutory injunctive relief are dismissed; 2. The defendants' costs of this application are the defendants' costs in the proceedings; 3. The remainder of the Originating Process is stood over to the Registrar's Corporations List on 14 December 2009. **********
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Harvey
Perpetual Nominees Ltd
Interlocutory injunction application dismissed (paragraphs 6 and 9 of the Originating Process, insofar as they sought interlocutory injunctive relief) and defendants' costs of the application ordered to be the defendants' costs in the proceedings; remainder of Originating Process stood over to Registrar's Corporations List [30].