Radin, Michael v Commonwealth Bank of Australia [1998] FCA 652

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 437 of 1996

BETWEEN: MICHAEL RADIN

Applicant

AND: COMMONWEALTH BANK OF AUSTRALIA

Respondent

JUDGE: LINDGREN J

DATE: 25 MAY 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT (ex tempore) (motion for interlocutory injunction to restrain sale by mortgagee) There is before the Court a motion brought by the applicant, in which he seeks an order that until further order the respondent ("the Bank") be restrained from carrying out or exercising its power of sale under a mortgage over a residential property situate at 11 Appian Way, Burwood ("the Property"). The Property is currently advertised to be put up for sale by auction next Saturday, 30 May. The proceeding is one of three that were heard together and in which I have reserved judgment. In each, the Bank is the respondent. It is the successor to the Commonwealth Savings Bank of Australia ("the Savings Bank") and the Commonwealth Trading Bank of Australia ("the Trading Bank"). In proceeding NG 984 of 1995, Mr Radin's mother, Mrs Vladimirka Radin, is the applicant. In proceeding NG 985 of 1995, Mrs Judith Radin, Mr Radin's former wife, is the applicant. In the proceedings the respective applicants seek to challenge various securities given by them to the Bank. The Property is the former matrimonial home of Mr and Mrs Radin. The mortgage presently in question is a first mortgage registered number X381289 dated 5 January 1988 to the Savings Bank ("the Savings Bank Mortgage") and secures a home loan and a home improvement loan. By a cross-claim in Mrs Judith Radin's proceeding, the Bank sought judgment for possession of the Property under the Savings Bank Mortgage, leave to issue a writ of possession and a money judgment for $711,011.06. On 30 April 1997, summary judgment was given for the Bank accordingly. The bank issued a writ of possession. Mrs Judith Radin, who lived in the Property with two children of the marriage, made applications for stays of execution of the writ. The Bank has in recent times obtained vacant possession. In seeking interlocutory relief Mr Radin must demonstrate that there is "a serious issue to be tried" and that the balance of convenience favours the granting of interlocutory relief. The two are interrelated. I turn first to the matter of a serious issue to be tried. It seems to me that in this respect Mr Radin faces a fundamental problem. When one speaks of a serious issue to be tried one means a serious issue to be tried as to whether the applicant for interlocutory relief will obtain final relief of a kind which the interlocutory relief is calculated to make effectual Thus, if Mr Radin were to be seeking final relief in the form of a declaration that the Savings Bank Mortgage was void or final relief in the form of a permanent injunction against the Bank's exercising its power of sale under the Savings Bank Mortgage, an interlocutory injunction of the kind presently sought would be in aid of such final relief, and a question would arise whether there was a serious issue to be tried that final relief of that form would be granted. But Mr Radin does not seek to challenge the validity of the Savings Bank Mortgage and does not seek final relief directed to preventing the Bank from exercising its rights as mortgagee under it. For this reason alone, in my view, the present motion must be dismissed. In my reasons for judgment dated 8 May 1997 on the Bank's motion for summary judgment, I noted (at page 2) that an important distinction was to be made between the Savings Bank Mortgage and the various other mortgages. The distinction was that while the Radins were seeking to have the others set aside, neither Mr nor Mrs Radin challenged the validity or enforeceability of the Savings Bank Mortgage. The Bank filed its notice of motion for summary judgment on 16 April 1997. On 18 April 1997 Mr Radin filed a notice of motion seeking to be added as a respondent to that motion. On the day of the hearing, 30 April 1997, both Mr Radin's motion to be added as a respondent to the Bank's motion and the Bank's motion for summary judgement itself were fixed for hearing. Mr Naiman appeared for Mr Radin. He announced that Mr Radin was not proceeding on his motion to be added as a respondent. In fact, Mr Radin's motion seeking that order was dismissed by consent, although Mr Naiman remained in Court during the hearing of the Bank's motion for summary judgment. Much later, Mr Radin sought leave to amend his amended statement of claim in this proceeding, which had been filed on 19 February 1997, by taking in a reference to the Savings Bank Mortgage. Paragraph 6 of the amended statement of claim sought (a) "[a]n injunction to restrain the Defendant from taking possession of land or taking any further action pursuant to: ...