NSW Caselaw
New South Wales Supreme Court
CITATION : Australian Barter Currency Exchange Pty Ltd v Uniting Church NSW Trust Association Limited [2009] NSWSC 607
HEARING DATE(S) : 10/06/2009
JUDGMENT DATE : 2 July 2009
JUDGMENT OF : Hoeben J
DECISION : Defendant be restrained from holding auction for the sale of the Bathurst Street properties with consequential orders.
CATCHWORDS : INJUNCTION - Application by mortgagors to restrain a sale of properties - whether prospect of refinancing very likely - relevance of lateness of application - explanation for delay - discretionary matters and balance of convenience.
LEGISLATION CITED : Real Property Act 1900
CATEGORY : Procedural and other rulings
CASES CITED : Parist Holdings Pty Limited v Perpetual Nominees Ltd [2006] NSWSC 599
PARTIES : Australian Barter Currency Exchange Pty Ltd - Plaintiff Uniting Church NSW Trust Association Limited - Defendant
FILE NUMBER(S) : SC 11739/2009
COUNSEL : Mr M Ashhurst SC/Mr D Allen - Plaintiff Mr M Condon/Ms T McEnierney - Defendant
SOLICITORS : Proctor & Associates - Plaintiff Holman Webb - Defendant
IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION
HOEBEN J
Thursday, 2 July 2009
11739/2009 – AUSTRALIAN BARTER CURRENCY EXCHANGE PTY LIMITED & Ors v THE UNITING CHURCH (NSW) TRUST ASSOCIATION LIMITED
JUDGMENT 1 HIS HONOUR: Nature of proceedings This matter came on for hearing as an urgent matter in the Duty Judge's list on 10 June 2009. The plaintiff companies as mortgagors sought by way of Notice of Motion injunctive relief to restrain the exercise of a power of sale by the defendant as mortgagee. The properties concerned were 19-21 Kennett Street, Baulkham Hills; 68 Bathurst Street, Liverpool; 70 Bathurst Street, Liverpool and 72-74 Bathurst Street, Liverpool. Auction sales in respect of those properties had been arranged for 11 June 2009. The defendant opposed the application. 2 Although the Notice of Motion referred to only one plaintiff (Australian Barter Currency Exchange Pty Limited) it is clear from the Summons and the affidavits of Mr Malek that the properties, the subject of this application, were not all owned by the plaintiff but by some of the plaintiff companies in the Amended Summons in the principal proceedings. I have accordingly referred to the plaintiffs in the plural throughout this judgment.
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