LEY V. O'HAGAN AND OTHERS

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REASONS FOR JUDGMENT Oral . Judgment delivered at.

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O'HAGAN AND OTHERS

Appeal dismissed with costs.

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O*HAGAN AND OTHERS

JUDGMENT . BARWICK C.J. (ORAL)

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O'HAGAN AND OTHERS

The appellant has at this stage asked that his appeal be dismissed and that there be no order as to costs. The hearing of the appeal has occupied all day yesterday and up to this point today. We will accede to the application that the matter be dismissed at the request of the appellant, but I would like to say that I consider this a wise course because, in my opinion, there was no foundation at all for the appeal. I would like to say something about that matter.

As ultimately constituted, after amendment, this was a suit by which the respondent company sued mortgagees, who are the respondents O'Hagan, to restrain them from carrying out a contract by which land mortgaged by that respondent to those mortgagees was sold to the purchaser, who is a defendant in the suit and is now a respondent in this appeal; and also to obtain redemption of the mortgaged land. The sole basis of the claim to such an injunction was that the sale had been made

by the mortgagees in exercise of their power of sale on default

in disregard of the mortgagor's rights and interests at a gross

under value and that the purchaser was aware of that circumstance.

During the hearing of the suit before the learned

judge in Equity the appellant, who is the principal executive

officer of the respondent company, was removed from the suit as a plaintiff and joined as a defendant. In a statement of defence he claimed that he was entitled to redeem the mortgaged land as an assignee from the respondent company of its equity of redemption. The critical question, therefore, in the suit was whether the sale price of $9,000 for the land in question was grossly under the then market value of that land.