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[1990] NSWCA 144
Court of Appeal (NSW)
1990-09-18
Powell J, Kirby P, Clarke JA, Handley JA, Clarke J
Original judgment source is linked above.
KIRBY P, CLARKE, HANDLEY JJA 18 September 1990, 18 September 1990 [1990] NSWCA 144
MORTGAGE - power of sale - mortgagors in default seek to restrain exercise of power of sale by mortgagee - allege sale at undervalue - mortgagee concedes for purpose of argument an arguable case - trial judge (Powell J) holds mortgagors disentitled to injunction because they had not, as a condition for obtaining it, offered to redeem or bring into court the amount prima facie due under the mortgage. Harvey v McWatters (1948) 49 SR (NSW) 173 applied - application to Court of Appeal for leave to appeal - Held (Clarke and Handley JJA; Kirby P dissenting) leave should be refused. This was not an appropriate case to reconsider the ruling in Harvey v McWatters as it had not been shown that a different result would follow in the present case if a different rule were adopted. (per Kirby P, dissenting) Harvey v MceWatters is ripe for reconsideration and the instant case, expressed in terms of "disentitlement" to relief, tendered the issue in an acute way.
INJUNCTIONS - mortgagee's sale - circumstances in which granted - Harvey v McWatters, (1948) 49 SR (NSW) 173 considered.
Kirby P In this matter I would grant leave to appeal and make consequential orders. In my view, Harvey v McWatters (1948) 49 SR (NSW) 173 is ripe for reconsideration by this Court. This case (where Powell J held, applying the holding in that decision, that it "disentitled" the claimants to relief) tenders the issue in an accute way. As my view is a minority view, I will not go into detail as to the orders or the conditions which I would impose as terms for the grant of leave to appeal. I content myself with proposing that leave to appeal be granted.
Clarke JA In my opinion leave should be refused. Whilst I would not like to betaken to be agreeing with everything that his Honour said, I see no reason to believe that the conclusion which he came to was erroneous. Indeed it seems to me that everything I have heard during this hearing would indicate that the proper exercise of discretion should have led to a refusal of an injunction.
Handley JA I agree with Mr Justice Clarke. I, too, would refuse leave to appeal. While there are some aspects of the decision in Harvey v McWatters which at some stage and in an appropriate case may merit review by an appellate court in this country, I do not consider that this is an appropriate case to embark on that review and I also agree that the proper exercise of the discretion of a judge at first instance confronted with this material would have led to the refusal of interlocutory relief.
KIRBY P: Having regard to the majority opinion the order of of the Court is that the summons be dismissed. The claimant is to pay the opponent's costs.
Solicitors for Claimant: Kemp Strang and Chippindall Counsel for first Respondent: KE Lindgren and S White Solicitors for first Respondent: Johnson and Co Counsel for second Respondent: M Pembroke
Solicitors for second Respondent: Borrett Timmony Day
PATTERSON
MORTGAGE FINANCE AUSTRALIA