PATTERSON v MORTGAGE FINANCE AUSTRALIA [1990] NSWCA 144

PATTERSON v MORTGAGE FINANCE AUSTRALIA

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

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.

Summons for leave to appeal dismissed with costs.

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.