//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2026] NSWSC 920
Supreme Court of NSW
2026-07-31
Slattery J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Hungry Joe Productions Pty Ltd atf The Hungry Joe Trust & Anor v DCF Lending Pty Ltd & Anor [2026] NSWSC 920
Hearing dates: 30 & 31 July 2026
Date of orders: 31 July 2026
Decision date: 31 July 2026
Jurisdiction: Equity - Duty List
Before: Slattery J
Decision: Motion for interlocutory relief dismissed with costs. Orders stayed until 12 noon on Monday, 3 August 2026, to allow the plaintiffs an opportunity to seek leave to appeal.
Catchwords: EQUITY — Equitable remedies — Injunctions — interlocutory injunction – damages not an adequate remedy – the first plaintiff, a corporation, borrowed money under a loan facility made with the first defendant, a financier – the second plaintiff is the registered proprietor of suburban residential land used as security for the loan facility between the first plaintiff and the first defendant – the first plaintiff defaults on the facility – the first defendant exercises its power of sale over the land – contract for the sale of the land made in exercise of the first defendant’s power of sale with the second defendant as purchaser – the plaintiffs seek to restrain the completion of the contract – the plaintiffs allege that the first defendant has improperly exercised its power of sale and failed in its duties under Conveyancing Act 1919, s 111 in relation to the sale of the property – the defendants resist the relief sought and seek to complete the contract – whether there is a serious question to be tried – whether the balance of convenience favours the grant or refusal of interlocutory injunctive relief – what orders are appropriate in relation to a possible application for leave to appeal.
LAND LAW — Mortgages — Statutory power of sale under Real Property Act 1900 – identification of the duties of the first defendant, a mortgagee exercising a power of sale.
Legislation Cited: Civil Procedure Act 2005, Part 6
Conveyancing Act 1919, s 111A
Real Property Act 1900, ss 43A, 57(2)(b)
Supreme Court Act 1970, s 66(4)
Cases Cited: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; (2006) 229 ALR 457; (2006) 80 ALJR 1672; [2006] HCA 46
Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 118 CLR 618; [1968] ALR 469; (1968) 42 ALJR 80; [1968] RPC 301
Beese (Managers of Kimpton Church of England Primary School) v Woodhouse [1970] 1 All ER 769; [1970] 1 WLR 586
Francome v Mirror Group Newspapers Ltd [1984] 1 WLR 892; [1984] 2 All ER 408; (1984) 81 LSG 2225; (1984) 128 SJ 484
Inglis v Commonwealth Bank of Australia (1972) 126 CLR 161
Kolback Securities Ltd v Epoch Mining (1987) 8 NSWLR 533; (1987) 11 ACLR 630
McCarty v Council of the Municipality of North Sydney (1918) 18 SR (NSW) 210; (1918) 35 WN (NSW) 85
Texts Cited: JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (5th ed 2014, LexisNexis Butterworths)
Category: Consequential orders
Parties: First Plaintiff: Hungry Joe Productions Pty Ltd (ACN 637 523 516) in its own capacity and as trustee for The Hungry Joe Trust (ABN 73 998 799 284
Second Plaintiff: James Ronald Isbell
First Defendant: DCF Lending Pty Ltd (ACN 674 533 932)
Second Defendant: Margaret Kate Dupree
Representation: Counsel:
Second Defendant: J. Bailey
Solicitors:
First Plaintiff: Hungry Joe Productions Pty Ltd (ACN 637 523 516) in its own capacity and as trustee for The Hungry Joe Trust (ABN 73 998 799 284
Second Plaintiff:
First Defendant: Thomas Barrington-Smith, Summer Lawyers
Second Defendant: Andrew Quach, Origin Lawyers
File Number(s): 2026/311918
Publication restriction: No
The second plaintiff, Mr James Isbell, is the registered proprietor of real estate in Cabarita Road, in the Northern Beaches suburb of Avalon ("the Avalon property"). The first plaintiff, Hungry Joe Productions Pty Ltd (“Hungry Joe Productions”), a company Mr Isbell controls, borrowed funds from the first defendant, DCF Lending Pty Ltd (“DCF”) under a finance facility. Hungry Joe Productions’ repayment obligations to DCF were secured over the Avalon property. Hungry Joe Productions defaulted on those obligations. DCF is in possession of the Avalon property and has exchanged contracts for its sale to the second defendant, Ms Margaret Kate Dupree, as purchaser. The first defendant has exercised, at least purportedly, a power of sale under certain security documents and, through that exercise, has signed a contract with the second defendant, Ms Dupree.
The plaintiffs by their Summons and their Notice of Motion, filed in the Equity Duty List on 28 July 2026, seek to restrain the completion of a contract for sale of the Avalon property and an interlocutory injunction restraining the first defendant from selling or disposing of the Avalon property until the determination of these proceedings. The primary reason for the urgency of the application is that the contract for sale of the Avalon property was initially due for completion on Wednesday, 29 July.
The plaintiffs principally complain about DCF’s conduct of the mortgagee sale alleging breaches of its duties under Conveyancing Act 1919, s 111A to take reasonable care to ensure that the land is sold for not less than its ascertainable market value when it is sold, or alternatively at the best price that may reasonably be obtained in the circumstances. They also raise issues that might lead to claim for a relief to set aside the original transaction by which Hungry Joe Productions borrowed funds from DCF and Mr Isbell provided security over the Avalon property.
In summary, DCF contends that the sale of the Avalon property was conducted in conformity with Conveyancing Act 1919, s 111A and otherwise in accordance with proper and appropriate marketing practices suitable to the sale of the subject land. Alternatively, DCF says that it applied all necessary marketing energy but in the face of a very thin market for buyers (which was that way for reasons beyond its control) nevertheless obtained the best price reasonably obtainable in such a market. DCF says that that price is not only disappointing to the plaintiffs but DCF itself did not recover its capital and made a loss on this transaction.
The proceedings originally included a contest about certain chattels which DCF had taken from the property prior to the exercise of its power of sale. That issue has now resolved, following orders made by the Court and accepted by both parties but not yet implemented.
The Court was approached by the plaintiffs on 28 July, last Tuesday. A return date was given before Kunc J on the morning of Wednesday 29 July because the contract of sale was due to settle on that afternoon. At a hearing on the afternoon 29 July orders were made for the service of evidence in preparation for a hearing on 30 July, and an interim injunction was granted temporarily restraining settlement of the contract for sale until the conclusion of the hearing. Subject to the exigencies of the duty list the proceedings were ultimately heard in the afternoon of 30 July. This judgement was given on the afternoon of Friday 31 July.
The Court has power to grant interlocutory injunctions under Supreme Court Act 1970, s 66(4), on terms, if necessary, in any case where “it appears to the Court to be just or convenient”. The Court must consider whether the plaintiff’s case presents a serious question to be tried and whether the balance of convenience, hardship and related factors warrant the grant of an interlocutory injunction.
This is an interlocutory hearing, not a final hearing. The Court’s task is not to undertake a preliminary trial and to give or withhold interlocutory relief upon some forecast as to the ultimate result of the factual dispute between the parties, although the relative strengths of the parties’ cases are not irrelevant to the exercise of the Court’s discretion.
The Court’s task on an interlocutory hearing such as this one was well expressed by the English Court of Appeal in Francome v Mirror Group Newspapers Ltd [1984] 1 WLR 892; [1984] 2 All ER 408; (1984) 81 LSG 2225; (1984) 128 SJ 484 when Sir John Donaldson MR said (at 894H – 895A):
“The defendants now appeal. It is of paramount importance that everyone should understand the exercise upon which the judge was, and we are, engaged. There is to be a speedy trial at which the rights of the parties will be determined. That has not yet happened. We are concerned, so far as we can, to preserve the rights of the parties meanwhile. It is not our function to decide questions of fact or law which will be in issue at the trial. If they are arguable, that is the time and the place when they should be argued.”
“What then should we do? I stress, once again, that we are not at this stage concerned to determine the final rights of the parties. Our duty is to make such orders, if any, as are appropriate pending the trial of the action. It is sometimes said that this involves a weighing of the balance of convenience. This is an unfortunate expression. Our business is justice, not convenience. We can and must disregard fanciful claims by either party. Subject to that, we must contemplate the possibility that either party may succeed and must do our best to ensure that nothing occurs pending the trial which will prejudice his rights. Since the parties are usually asserting wholly inconsistent claims, this is difficult, but we have to do our best. In so doing, we are seeking a balance of justice, not of convenience.”
In deciding whether to grant an interlocutory injunction the Court must consider whether there is a serious question to be tried and then whether the balance of convenience and questions of hardship and related factors warrant the grant of an interlocutory injunction. First, the plaintiff must prove a serious, not a speculative, case which has a real possibility of ultimate success and that property or other interests might be jeopardised if no interlocutory relief is granted: JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (5th ed 2014, LexisNexis Butterworths) at [21–350] (“Equity Doctrines and Remedies”), discussing the requirements of the Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 118 CLR 618; [1968] ALR 469; (1968) 42 ALJR 80; [1968] RPC 301 prima facie case test. Put another way, the plaintiff must show a sufficient likelihood of success to justify the preservation of the status quo pending the trial: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; (2006) 229 ALR 457; (2006) 80 ALJR 1672; [2006] HCA 46 at [70] – [71].
Then, it becomes a matter of analysing if in all the circumstances of the case, considering the balance of convenience and issues of hardship, the Court should nonetheless exercise its discretion by declining to issue an interlocutory injunction: Equity Doctrines and Remedies at [21–350]; and see also Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; (2001) 185 ALR 1; (2001) 76 ALJR 1; [2001] HCA 63 and Beese (Managers of Kimpton Church of England Primary School) v Woodhouse [1970] 1 All ER 769; [1970] 1 WLR 586. Other factors to which the Court will have regard include the adequacy of damages, the possibilities of alternative remedies, whether there has been any laches or delay, the strength of the grounds of defence suggested by the defendant, what, if any, undertakings the defendant is prepared to give, but hardship and the balance of convenience are very important: Equity Doctrines and Remedies [21 – 375]. If any infringement of a plaintiff’s right between writ and hearing would be properly compensated in damages, that fact alone can, but not must, be a ground for declining an injunction: McCarty v Council of the Municipality of North Sydney (1918) 18 SR (NSW) 210; (1918) 35 WN (NSW) 85.
In Kolback Securities Ltd v Epoch Mining (1987) 8 NSWLR 533; (1987) 11 ACLR 630 McLelland J (as His Honour then was) when considering what must be established for the grant of an interlocutory injunction when the restraint in question may have implications for the disposition of the proceedings at final hearing, said:
"As I see it, the position is as follows. Where a plaintiff's entitlement to ultimate relief is uncertain, the Court, in deciding to grant or refuse an interlocutory injunction, must consider what course is best calculated to achieve justice between the parties in the circumstances of the particular case, pending the resolution of the uncertainty, bearing in mind the consequences to the defendant of the grant of an injunction in support of relief to which the plaintiff may ultimately be held not to be entitled, and the consequences to the plaintiff of the refusal of an injunction in support of relief to which the plaintiff may ultimately be held to be entitled: see, eg, Appleton Papers Inc v Tomasetti Paper Pty Ltd [1983] 3 NSWLR 208 at 216; A v Hayden (No 1) (1984) 59 ALJR 1 at 4-5; 56 ALR 73 at 79. Where the uncertainty depends in whole or in part on a contested question of fact it is not appropriate for the Court to decide that question on the interlocutory application. Where the uncertainty depends in whole or in part on a contested question of law, it may or may not be appropriate for the Court to decide that question on the interlocutory application, depending on circumstances, eg, whether the question is novel or difficult, or is susceptible of resolution on the present state of the evidence, or whether the urgency of the matter renders it impracticable to give proper consideration to the question: see, eg, A v Hayden (No 1) (at 4; 78); Cohen v Peko-Wallsend (1986) 61 ALJR 57 at 59;68 ALR 394 at 397. If the Court does decide the question of law the uncertainty is to that extent removed.
Unless the plaintiff shows that there is at least a serious question to be tried which if resolved in its favour would entitle it to final relief, then the requirements of justice as between the parties will dictate that an interlocutory injunction should be refused: Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 57 ALJR 425; 46 ALR 398; Tableland Peanuts Pty Ltd v Peanut Marketing Board (1984) 58 ALJR 283; 52 ALR 651; A v Hayden (No 1); Castlemaine-Tooheys Ltd v South Australia (1986) 60 ALJR 679; 67 ALR 553 and Cohen v Peko-Wallsend Ltd.
Apart from this, although normally the Court "does not undertake a preliminary trial, and give or withhold interlocutory relief upon a forecast as to the ultimate result of the case" (Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622), there are some kinds of case in which for the purpose of seeing where lies the balance of convenience (or more specifically "the balance of the risk of doing an injustice" - see per May LJ in Cayne v Global Natural Resources plc [1984] 1 All ER 225 at 237, cf per Brennan J in Brayson Motors Pty Ltd v Federal Commissioner of Taxation (1983) 57 ALJR 288 at 292; 46 ALR 279 at 285), it is desirable for the Court to evaluate the strength of the plaintiff's case for final relief: see, eg, Brayson Motors Pty Ltd v Federal Commissioner of Taxation (at 292; 285); Castlemaine-Tooheys Ltd v South Australia at 682; 559. One class of case to which this applies is where the decision to grant or refuse an interlocutory injunction will in a practical sense determine the substance of the matter in issue: see, eg, NWL Ltd v Woods [1979] 1 WLR 1294 at 1306-1307; [1979] 3 All ER 614 at 625-626 per Lord Diplock; Cayne v Global Natural Resources plc. The present is such a case. The substantial matter in issue is whether Epoch should be permitted to proceed with the issue of non-renounceable rights in accordance with the announcement of 13 March 1987. That will be irrevocably determined in a practical sense by the grant or refusal of an interlocutory injunction."
These reasons now set out a narrative of some facts relevant to the interlocutory issues. In such a hearing in the duty list, the Court’s reasons cannot encompass all the relevant facts. Except where the facts are uncontentious, and many of them are in this matter, the Court’s narrative below should be understood, and is mostly expressed, as a forecast of the kind of evidence that each party proposes to adduce and the contentions that each party intends to advance at a final hearing.
These proceedings have been well conducted on all sides. It should be said, as it is quite an unusual phenomenon, but Mr Isbell, a litigant in person, has presented a comprehensive, detailed and well-organised case without the apparent assistance of legal advice. The defendants have also cooperated in bringing the proceedings on quickly by gaining instructions and putting on evidence through their legal representatives to enable the hearing to take place quickly. The case has been made, from the Court's point of view, much easier because of cooperation on both sides, which led, for example, to the issue of the chattels being resolved quickly.
It is convenient to summarise the evidence that it likely to be adduced at a final hearing by first considering the evidentiary case to be advanced by Ms Dupree and then DCF, and then to consider the plaintiffs’ contentions and some of the evidence the plaintiffs advance to support those contentions.
Ms Dupree, the second defendant, is currently living in rented accommodation in Palm Beach. She was planning to move into the Avalon property at the settlement originally scheduled for mid-this week. She has been given a notice of termination by her Palm Beach landlord, who is renovating the premises she is renting. These renovations are due to commence next Wednesday, 5 August. If the sale is delayed, she will have to find other property to rent pending the determination of these proceedings. She has already expended fees of nearly $12,000 in investigating her purchase of the Avalon property.
It will not be in issue at the trial that Ms Dupree became a purchaser due to the marketing of the property by DCF’s agent, L. J. Hooker, and who had no other prior connection with DCF. Indeed, her evidence is that she had been looking at a nearby property for sale when the marketing brought the Avalon property to her attention. She says that even as she proceeded to purchase, she was unaware DCF was responsible for selling the property until she finally saw the contract for sale for her signature. This also tends to suggest that she was unaware that it was a mortgagee sale.
The Court accepts that there is no contest that she was independent of the first defendant and she is not a related party of the first defendant. The plaintiffs have been candid in not contesting that asserted lack of connection, which is to their credit. That is how the evidence appears to fall out on all sides.
Ms Dupree has undertaken various steps to prepare for a PEXA settlement today which could occur at the latest at 5 PM. She attends Court today, resisting the relief sought by the plaintiff. She was not initially joined in the proceedings, but the Court ordered her joinder so that she would be bound by the outcome.
DCF’s evidence, given through its director, Mr James Manning, provides a short history of the transaction, some details of which will be expanded when the plaintiff's evidence is examined.
On 24 September 2025 the transaction commenced when DCF executed a mortgage (incorporating a Memorandum of Common Provisions) granted by Mr Isbell over the Avalon property pursuant to a Finance Offer Schedule dated 19 September 2025. This was a second mortgage after the existing first mortgage to the Commonwealth Bank of Australia (“CBA”).
On 29 December 2025 a default notice was issued and posted to Mr Isbell. DCF then took a series of enforcement steps. On 17 February 2026 DCF appointed a local real estate agent, L. J. Hooker Avalon Beach, to manage the sale of the property and a sales report was obtained.
The Court wishes to do justice to the range of contentions the plaintiffs have made and the detailed evidence they have filed. The following is only a high-level summary of the evidence and the submissions of the plaintiff. But a full account of the evidence cannot be included in an interlocutory judgement such as this, so only the more relevant features are emphasised here. There are no pleadings yet, so the Court must infer some of the potentially pleadable remedies on behalf of the plaintiffs from the available materials.
The plaintiffs’ evidence includes material about the conduct of DCF at and before the plaintiff entered the borrowing facility. It may be gleaned from the plaintiffs’ evidence that the plaintiffs will challenge aspects of their entry into and the terms of the finance facility with DCF on grounds of alleged unfairness, economic duress, unconscionable conduct and misleading and deceptive conduct. This is in addition to the plaintiffs’ principal contention that DCF’s sale process for the Avalon property was inadequate.
The plaintiffs’ evidence explains that the sale price of $2.65 million is well below repeated market valuations of the Avalon property at around $3.6 million and therefore undervalues the Avalon property. Mr Isbell explains that his lending arrangements with DCF arose out of a situation of financial duress in which he found himself following the entry into voluntary administration in March 2025 of another company he controlled, Second Sphere Partners Pty Ltd (“SSP”), a situation allegedly caused by the misconduct of a co-director of SSP. In September 2025 he needed to execute a Deed of Company Arrangement in the administration of SSP to avoid that company’s liquidation.
Mr Isbell’s evidence and submissions complain DCF took advantage of its knowledge of the pressure on him to avoid the liquidation of SSP and that he had no other practical finance options. He says that DCF engaged in onerous and oppressive conduct. His case complains of at least the following in summary: DCF altering the loan principal and imposing onerous special conditions at the last moment, and setting up borrowing terms and communications, so the borrower went into almost immediate default. Then Mr Isbell complains of rollover delays and unreasonable demands for additional rollover fees on the part of DCF, the sudden removal of his family’s personal possessions from the property and the taking of possession of the Avalon property and the ouster of a good tenant who was paying $5,750 per month.
Then Mr Isbell’s evidence then turns to what happened when DCF began to exercise its power of sale. He describes DCF’s stop-start sales campaign, which was initially accelerated (only allowing two weeks before auction) then slowed but which always marketed the property at a material undervalue from its true value of about $3.6 million. At final hearing Mr Isbell anticipates adducing evidence that other agents, including the agent who was managing the rental of the Avalon property, were allegedly approached by DCF to conduct appraisals for a “firesale”. DCF says it disputes these contentions and that it did not intend to conduct a “firesale”. These various matters will comprise some of the contests at final hearing.
DCF accepts that there is a serious question to be tried. The plaintiffs have an arguable case that DCF has breached its duties under Conveyancing Act s 111A. Those duties and related are more fully explained for example in Butt’s Land Law, 7th Edition, Thomson Reuters, Law Book Co, 2017 at [11.1320 – 11.13330] (“Butt*”*) and need not be elaborated further here. But DCF also has an arguable defence to that case.
Ordinarily that would lead directly to considerations of the balance of convenience. But as McLelland J said in Kolback Securities v Epoch Mining, this is a case in which the granting or withholding of interlocutory relief either in substance will, or will come close to, a grant of final relief between the parties. It is not complete final relief, but it has many of the elements of final relief because one or other party will probably end up with the Avalon property because of the Court's interlocutory determination and the other party will be left to a remedy in damages. In those circumstances, Kolback Securities v Epoch Mining stands for the proposition that the Court can analyse the relative strengths of the parties' cases, even on the limited materials available. Although in the Court’s view it is difficult here, as it often is, to predict an outcome of final hearing. But it can be said that if Ms Dupree seeks specific performance of her contract for sale, she is a bona fide purchaser for value without any connection with DCF.
One other matter of law should be mentioned but need not be elaborated. The Court may have inadvertently misstated the law applicable to Real Property Act s 43A during submissions. What is known as the Hardie-Taylor view of s 43A is the law, not what is known as the Kitto view: see for example the discussion in Butt at [12.1260 – 12.1280]. I will apply the Hardie-Taylor view, which means that provided notice is given to the incoming purchaser (as has occurred here) of the plaintiffs’ claimed equity before settlement (which has not yet occurred here), then protection may not be afforded to the incoming purchaser. That is the essence of the current contest: Ms Dupree does not yet have indefeasible title and may yet be unsuccessful at a final hearing.
The "balance of convenience" is a somewhat misleading term. It is really the balance of potentially doing an injustice. The plaintiffs says that damages are not an adequate remedy. But the defendants can say the same thing.
The potential injustice here from the plaintiffs’ point of view is the injustice that if the plaintiffs succeed in showing DCF has breached its Conveyancing Act s 111A duties, if an interlocutory injunction is not granted they will nevertheless still lose the Avalon property, which is a family home and which the Court accepts has great emotional and personal significance for Mr Isbell and all his family members.
For these reasons, the Court will dismiss the motion and the interlocutory relief sought in the summons, with costs. But at the time of completion of the giving judgment this afternoon it is already after 4:30 PM and it is not practicable for the first and second defendants to arrange to finalise a settlement on the PEXA system, which closes at 5 PM.
Moreover, particularly because of the significance to the parties of this interlocutory determination, which denies the second plaintiff any practical opportunity to retain the Avalon property and leaves him to his remedies and damages, I will stay that order until 12 noon on Monay 3 August. This will give him some opportunity to seek leave to appeal but will still give the second defendant reasonable certainty about planning to move into the Avalon property. The plaintiffs will need to seek relief in anticipation of obtaining leave to appeal as the plaintiffs do not have a right of appeal against interlocutory orders such as these.
The Court therefore makes the following orders:
ORDER that the interlocutory relief sought in the plaintiffs’ Motion and the Summons filed on 29 July 2026 be dismissed.
ORDER that the plaintiffs pay the defendants costs of the Motion and the Summons.
STAY ORDERS 1 and 2 and EXTEND the existing injunctive relief granted to the plaintiffs until 12 noon on Monday 3 August.
RESERVE for further consideration whether the proceedings as against the second defendant should be dismissed.
ORDER that the proceedings be stood over for mention to Monday, 17 August 2026 or such other date convenient to the parties that is fixed by arrangement with my Associate.
ORDER that these orders may be entered forthwith.
**********
para [65] - Orders
Hungry Joe Productions Pty Ltd atf The Hungry Joe Trust & Anor
DCF Lending Pty Ltd & Anor
[2006] HCA 46
[2001] HCA 63
(2006) 227 CLR 57
(2006) 229 ALR 457
The completion date for the transaction of the Avalon property has, first, by an undertaking and, secondly, by orders of the Court, been extended to 5pm yesterday, then 5pm today. Judgment is being given after 4pm today, and the settlement time will be extended until the orders of the Court can be finalised.
As a practical matter, whoever succeeds in this case, the unsuccessful party, in fairness, will require at least some limited opportunity, despite the urgency of the proceedings, to exercise their rights to seek leave to appeal. Given the time at which this judgment is being delivered late in the afternoon, a PEXA settlement today is not possible. It is the Court's intention to give reasons and make orders this afternoon, so the parties know the outcome before the weekend, but to stay those orders until 12 noon on Monday 3 August. Alternatively, that delay might also permit time either to organise a settlement on Monday or for Ms Dupree to have a chance to find alternative accommodation (her lease terminating on that day, due to an expected move in to the Avalon property soon after completion).
The second plaintiff, Mr Isbell, appeared for himself and was given leave to appear for the first plaintiff, Hungry Joe Productions . Mr Thomas Barrington-Smith of Summer Lawyers appeared for the first defendant, DCF. Mr J. Bailey of counsel, instructed by Andrew Quach of Origin Lawyers, appeared for the second defendant, Ms Dupree.
The property was originally listed on 14 March for an auction scheduled on 31 March, with an advertised price guide of $3.15 million. That option was withdrawn as there was no interest in the property with no one registering or reviewing the contract. The plaintiff complains that the marketing period of two weeks was too short and inadequate to attract buyer interest, so the lack of interest is not surprising. DCF says that the impact of the US-Iran war and RBA interest rate rises in February and March had depressed buyer interest in the Sydney property market. Whichever of these contentions is correct would be a matter for final hearing.
On 31 March LJ Hooker provided a revised estimated selling price of $2.95 million. The property was re-listed for auction with a reduced guide price of $2.95 million and with an auction scheduled for 21 April 2026. This allowed for a three-week marketing period, on top of the earlier two weeks that the property had been on the market. But the property was again withdrawn from auction as there was no interest, with no one registering as a bidder or to review the contract. In those circumstances DCF says there was no point in holding the auction.
The auction was again listed for 5 May 2026 with the same revised price guide of $2.95 million. Once again, the property was withdrawn from auction as no one had registered as a bidder or to review the contract.
The plaintiff says that the reason the auction was cancelled was that the marketing campaign was again inadequate and that is why there was no interest shown in the property. Again, that is a matter for trial at some final hearing.
DCF says that even if there was lack of interest in the property at one auction, the fact that it was listed three times with advertising for three publicly appointed auctions might well balance the force of any criticisms fielded by the plaintiffs in relation to alleged inadequacies in the timing of the first auction and of the marketing campaign generally.
After the failure of the 5 May auction DCF gave instructions for sale by private treaty with a price guide of $2.95 million. The private treaty process involved a degree of backwards-and-forwards negotiation between DCF and Ms Dupree and another potential purchaser, which continued until Ms Dupree signed her contract.
This is revealed by an LJ Hooker sales activity report detailing interest in the Avalon property between 12 March and 29 July 2026. It showed that there were 32 inquiries, 30 advertised inspection times and nine individual bar appointments with 118 groups inspecting the property and 13 contracts being issued. Ms Dupree’s initial bid of $2.4 million was rejected. She lifted her bid from $2.4 million to $2.5 million which was also rejected. Her bid of $2.6 million was also rejected. These three bids were lodged respectively on 3, 5 and 10 June.
Ms Dupree eventually came to the final figure of $2.65 million to match a conditional offer including a five-month settlement from another individual. Her offer was accepted on 6 July 2026, and contracts were ultimately exchanged with her on 8 July, with a settlement date of Wednesday 29 July.
Considering the plaintiffs’ evidence and contentions, the Court has not approached this matter by strictly applying the general rule in Inglis v Commonwealth Bank of Australia (1972) 126 CLR 161 (“Inglis”) to require the undisputed mortgage debt to be paid into Court as a condition of granting relief. Here there is sufficient evidence to ground statutory remedies under the Australian Consumer Law which would not require the rule in Inglis to be followed. Additionally, there is at least some suggestion in the plaintiffs’ materials of a challenge to DCF’s capacity to exercise its power of sale and its strict compliance with the notice provisions of Real Property Act 1900 s 57(2)(b), although at this early stage a strong challenge has not been clearly articulated. Where a mortgagor fields issues such as these, the Court can take a slightly more relaxed view of the principles in Inglis and they have not been applied here. The fact of default on the formal terms of the agreement as signed seems not to be in issue. But there is a challenge to what terms of the agreement are binding on the plaintiffs after they deploy statutory remedies and whether DCF’s conduct precipitated those defaults.
This analysis flows not just from submissions the plaintiff has made but looking also at what might arise from his evidence given that there has been insufficient time to assess its full legal implications.
DCF will also no doubt seek to answer the plaintiffs’ case of lack of proper marketing, an accelerated sale campaign, the plaintiff’s contention of a sacrifice of his right of redemption conferred under Conveyancing Act s 93 and calculated delays in settlement negotiations, by characterising the various steps it has taken as administrative necessities.
The plaintiff says that an analysis of the mathematics of the sale judgment reveals a reckless bad-faith sacrifice of his equity. He says the CBA, the first mortgagee is currently owed $1.8 million, so the sale price of $2.65 million only leaves $850,000. DCF is voluntarily accepting a shortfall of approximately $205,000 on its own principal owed of $1,055,041 and involves DCF writing off over $429,900 of its claimed a debt of $1,279,900. This has the effect the plaintiff points out of destroying his remaining $520,000 in equity in the Avalon property.
But DCF defendant seeks to answer this by saying that the fact that the first defendant is seeking to sell at a capital loss indicates, to some extent, the genuineness of its sale process. It submits that like the plaintiffs it has had to accept the verdict of the marketplace, contrary to its wishes.
Some other matters the plaintiffs have raised should be mentioned before going to the process of weighing the balance of convenience in this case. The plaintiff says DCF's evidence about the reason for the poor showing from its marketing is internally inconsistent. Yes, DCF has advanced a range of different explanations for the marketing outcome. But the Court regards that issue as a contest for final hearing. It may be for example that all the explanations given for low price achieved are true to some extent and they are not necessarily inconsistent.
The other remaining issue is the plaintiffs dispute the quantum of DCF’s claims and challenge DCF’s calculations in various respects, saying that a lesser sum is owed and that too much being claimed by DCF. The Court has examined the correspondence, which shows the disputed items and the Court accepts that the plaintiffs have an arguable case in respect of some of these items.
But when it comes to a possible refinance, the only way that this can be dealt with is ultimately to find, in accordance with the usual practice, that the plaintiffs would have to fund even any disputed amounts. These would have to be covered by the refinance, with the true balance to be determined at a later point of time and as will be seen below that may lead to a shortfall in the plaintiffs’ present potential access to sufficient refinance funding.
The potential injustice to the defendants is probably twofold. If there is a delay and the Court puts off the Avalon property settlement date to accommodate a future hearing, and the defendants are successful, the defendants may yet suffer significant financial loss while the proceedings are continued, which they may never be able to recover from the plaintiffs, who have not paid money into Court to secure against that possibility. Another related consideration is that if the plaintiffs succeed in obtaining an injunction and are successful against DCF, but they are ultimately unable to fund a refinance because of escalating costs and interest, then the defendants will also suffer an injustice: Ms Dupree from delay and potentially unrecoverable costs and DCF from greater losses.
The defendants point out that the plaintiffs’ undertaking as to damages may be of little value. That is probably right. On any view they will still have to pay out the full capital sum advanced by DCF together with some interest and costs, even if they are successful at final hearing so the quality of their undertaking as to damages is a significant factor. They have not identified valuable property other than the Avalon property to weigh in the balance in their favour. On the other hand, the plaintiffs point out that DCF’s evidence of its net worth is vague (not being based on a balance sheet) and that is also probably right but the plaintiffs are seeking equitable interlocutory relief here, not DCF.
The defendants point to the plaintiffs’ delay in bringing these proceedings. They could certainly have brought the proceedings a few days earlier which has occasioned greater inconvenience to the second defendant. But that relatively minor delay is not the most significant factor here.
One consideration is influential in the Court deciding what should be done in this case. On the financial information available, the Court has serious doubts that the scenario which will unfold, if it grants interlocutory relief to the plaintiffs, even if they are successful, will result in the plaintiffs being able to successfully refinance and pay out DCF.
Even if the plaintiff is successful in criticising the sale process conducted by DCF, or even in challenging the initial security documents, DCF has advanced a significant sum of $1,055,041 to the plaintiff. The Court doubts that the plaintiff, on the available evidence, will be able to refinance. To repay this capital sum together with reasonable interest and legal costs, after a contest at an expedited final hearing (which might optimistically be held within 3 to 4 months), will be daunting for the plaintiffs.
They may under the terms of the mortgage also have to pay some of DCF’s costs, even if they are successful. There is already a capital shortfall of $205,000 to DCF on the advances made under the existing contract of sale to Ms Dupree at $2.65 million. There is a fair chance that DCF will be able to recover at least some of the further $429,900 it claims to make up its total debt of $1,279,900. Even proof at final hearing of a proper sale price of another $500,000 or $600,000, had there been more effective DCF marketing of the property, may still not make the numbers work for the plaintiffs.
This is illustrated in DCF’s oral submissions. The plaintiffs need to meet a 70% loan to valuation ratio on the terms of the conditional offer they have received from Archer Capital. The CBA’s payout figure is approximately $1.8 million and DCF’s is approximately $1.2 million. Without considering other costs, this means the Avalon property would need to obtain a valuation of $4 million to meet a combined payout of $3 million. The plaintiffs do not claim the Avalon property is this valuable.
Finally, even the plaintiffs’ own most recent evidence concedes a shortfall in refinancing of approximately $418,000 on DCF’s figures and approximately $288,000 on the plaintiffs’ figures measured against a valuation of $3.625 million. This shortfall is only likely to worsen in the time that will elapse between now and the final hearing.
The Court is very mindful of the contest here. For the plaintiffs the Court's decision may involve a loss of a much-loved family residence. But to the first defendant, DCF, it may involve at least delay and significant potentially unrecoverable further losses. And for the second defendant, Ms Dupree, her involvement in further litigation to enforce her contract may make add potentially unrecoverable cost to the acquisition of her chosen property.
In the Court's view, for these reasons the balance of convenience favours the defendants and the Court will not grant the interlocutory relief sought by the plaintiffs.
(2006) 80 ALJR 1672
(1968) 118 CLR 618
(1968) 42 ALJR 80
(1972) 126 CLR 161
(1987) 8 NSWLR 533
(2001) 208 CLR 199
(2001) 185 ALR 1
(2001) 76 ALJR 1
(1984) 59 ALJR 1
(1986) 61 ALJR 57
(1982) 57 ALJR 425
(1984) 58 ALJR 283
(1986) 60 ALJR 679
(1983) 57 ALJR 288