IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION wwe ve ww DISTRIBUTION No. G345 of 1985 BETWEEN: MARY MORTON Applicant AND: DONALD ROSS BLACK Respondent CORAM : JACKSON J. DATE: 21st February 1986 PLACE: SYDNEY MINUTES OF ORDER THE COURT ORDERS THAT: 1. The injunction be refused. 2. The applicant pay the costs of the application to be taxed to the respondent. Note: Settlement and entry of orders is dealt with in . Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G345 of 1985 wewewevrw GENERAL DIVISION BETWEEN: MARY MORTON Applicant AND: DONALD ROSS BLACK Respondent CORAM : JACKSON J. DATE: 5th March 1986 PLACE: SYDNEY REASONS FOR JUDGMENT These are proceedings which were instituted on 22nd November 1985 and in which the applicant then sought only an order restraining 'the respondent or his agents from offering for sale or selling a property which is Portions 4, 5 and 33, Parish of Medlow, County of Raleigh. Morling J. granted an ex parte injunction on that day and it was continued by him on 26 November 1985 at a hearing at which both parties were represented, on the basis that the matter would be heard finally on 19th December 1985. 2. When the matter came on for hearing that day the parties did not wish the matter to proceed and directions were given with a view to a hearing in 1986. The applicant's solicitor was not prepared to give an undertaking as to damages and in consequence Morling J. discharged the injunction which he had earlier granted. The property is now to be auctioned at 11.00 a.m. on 22nd February 1986, (1.e. tomorrow) by the respondent as mortgagee exercising power of sale. The applicant is the owner of the property, having purchased it from the respondent pursuant to a contract of sale dated 4th October 1984. The purchase price under the contract was $315,000.00 and the mortgage to which I have referred was given by the applicant to the respondent for part of the purchase price, namely some $183,500.00. The $183,500.00 was payable as to $60,000.00 on 14th November 1984, as to $83,500.00 on 15th August 1985 and as to the balance of $40,000.00 on 3lst January 1986. The latter two payments have not been made. The applicant first became aware of the proposal to sell the property by auction on 7th February 1986 and a Notice of Motion seeking interlocutory injunctions was filed on 17th February. A Statement of Claim was filed on the same day. The Statement of Claim alleges that before entry into the contract and mortgage, misrepresentations were made by the 3. respondent to, or to be conveyed to the applicant concerning the property which would attract the operation of s.52 of the Trade Practices Act 1974. Reliance is placed also on s.53A(1)(b) and on fraud at common law but 1t is accepted that for present purposes it is unnecessary to go beyond s.52. The tests to be applied in considering an application of this nature are whether there is a serious question to be tried and, if so, whether the balance of convenience lies in favour of the grant or the refusal of the injunction. See Epitoma Pty Ltd v. The Australasian Meat Industry Employees' Union and Ors (No.2) (1984) 54 A.L.R. 730 at 734. As to the first of these matters I think that the applicant's evidence might have condescended to more detail concerning the facts constituting the contraventions of s.52, but I am prepared to assume that it shows that there is a serious question to be tried. Having made that assumption, however, it seems to me clear that the balance of convenience lies in favour of the refusal of the injunction. It is contended on behalf of the applicant that because the effect of the proceedings may ultimately be that, in one way or another, the liability of the applicant to the respondent under the mortgage is reduced, the balance of convenience favours the grant of the injunction. Further, it is said, the applicant wishes to reside in the property and has nowhere else to go. I should note in passing that the applicant gave oral evidence and, whilst I shall not go into detail concerning her credit, the present proceedings being interlocutory, I am not prepared to accept her evidence that she does bona fide wish to reside in the property. Further I am not prepared to accept her evidence that she would do if successful in the proceedings. On the other hand the respondent points to the fact that a very large sum of money is prima facie due under the mortgage, and that this is the second occasion on which, on the day before an auction sale, an injunction has been sought. Further the purpose of the sale of the property, as I accept, is not simply in order to put the proceeds of it in the respondent's pocket. The respondent used part of the proceeds of sale to the applicant, together with a loan of about $100,000.00 from the State Bank, to purchase a property at Tamworth in May 1985. The moneys were due to be repaid in part on 15th August 1985 and in part by 3lst January 1986 and "The loan was on the basis that the repayment to the Bank on the 15th August 1985 would be made from the moneys payable by the applicant to the respondent on that date under the mortgage from the applicant." The Bank has a mortgage over the Tamworth property under which he is in default because of the failure of 'the applicant to pay him under her mortgage to him. 5. It threatens to sell the Tamworth property, and it has cancelled the respondent's credit and has informed him that his cheques will be dishonoured if drawn. The respondent, as I find, has income which consists of a War Veteran's half pension and is borrowing money to live. In these circumstances I am of the view that I should allow the auction to proceed and I decline to grant the injunction. I order that the applicant pay to the respondent his costs of the application to be taxed. I certify that this and the a preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Jackson. Associate: DM anche. birg Date: §-2