St George Bank Ltd v Skouloudis [2002] NSWSC 433

New South Wales Supreme Court

CITATION : St George Bank Ltd v Skouloudis [2002] NSWSC 433 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 50023/01 HEARING DATE(S) : 8 May 2002 JUDGMENT DATE : 9 May 2002

St George Bank Limited (P) PARTIES : Jim Skouloudis (D1) Katerina Skouloudis (D2) JUDGMENT OF : Hamilton J

COUNSEL : M A Ashhurst (P) G M Thomas (D1 & 2) SOLICITORS : Kemp Strang (P) Potts Latimer (D1 & 2) CATCHWORDS : MORTGAGES [60] - Mortgages and charges generally - Remedies of the mortgagor - Injunctions to restrain sale - Payments into court by mortgagor of mortgage debt - Whether condition precedent in all cases. CASES CITED : Eltran Pty Limited v Westpac Banking Corporation (1988) 32 FCR 195 Kolback Enterprises Ltd v Epoch Mining NL (1987) 8 NSWLR 533 DECISION : Interlocutory injunction refused.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

HAMILTON J THURSDAY, 9 MAY 2002

50023/01 ST GEORGE BANK LIMITED v JIM SKOULOUDIS & ANOR JUDGMENT 1 HIS HONOUR: I heard yesterday in this matter an application on an interlocutory basis for an injunction to restrain the conduct of an auction at 7 pm last night. At about ten to 7 pm last night I refused the application. I did not at that time give reasons for my decision and said that I should deliver those reasons at a later time and that I now proceed to do. The applicants were Jim Skouloudis and Katerina Skouloudis. The premises concerned were a valuable house property at Denham Court which the St George Bank Ltd ("the Bank") was proceeding to sell under power of sale conferred by a mortgage. 2 An earlier application for interlocutory relief was refused by the Chief Judge in Equity on 12 March 2002. It was contended on behalf of the Bank that his Honour's decision precluded the granting of an injunction in satisfaction of the present application; that submission I rejected. His Honour gave only the shortest of reasons for judgment indicating that no sufficient basis was shown for interlocutory relief at that time. But circumstances have changed materially since that time, in that then no auction date had been set, and at the time I heard the application there was to be an auction within hours or minutes. Furthermore, while some of the evidence laid before me had previously been laid before the Chief Judge, the applicants' claim, pursuant to directions made by his Honour, had been defined by points of claim. As I have said, his Honour's refusal of that application did not preclude the granting of the application before me. Nor did I accept a submission on behalf of the Bank that the application would necessarily fail by reason of the fact that it was not accompanied by an offer to pay into court the amount owing under the mortgage, since there was at least a substantial argument that the case fell in the class of cases referred to in Eltran Pty Limited v Westpac Banking Corporation (1988) 32 FCR 195. A deal of evidence was led and there was substantial argument before me concerning both the degree to which the applicants' case as propounded in the points of claim had been made out and also as to the balance of convenience. 3 Since the refusal of the injunctive relief does not mean the end of the proceedings and matters argued before me may fall to be decided on a final basis, the less I say concerning my assessment of them the better. In my view I should essentially adopt the course adopted by the Chief Judge when he refused the earlier application in not expressing any view about the strength of the applicant's case. 4 Upon all the material before me I have carried out the exercise appropriate to the adjudication of applications for interlocutory injunctions as set out in the judgment of McLelland J in Kolback Enterprises Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 535 - 536. In my view the appropriate order to be made as a result of that exercise on the material before me was that the application for interlocutory relief be refused. Insofar as this result was contributed to by the thinness of the available material, that was a fact that redounded to the advantage of the Bank rather than to the advantage of the applicants, since the application was brought only two days before the auction and there was no evidence which adequately explained why the application had not been brought somewhat earlier. I should add that Mr George Thomas of counsel fought valiantly for the relief which he sought to obtain for his clients. 5 So far as costs are concerned, in my view the inevitable consequence of the result was that I should order that the applicants pay the Bank's costs of the application, and that is the order that I make in that regard. The matter is stood over to 9.30 am on Thursday 23 May 2002 before me for further directions. **********