Darren John Ciavarella v Hargraves Secured Investments Ltd ACN 089 001 267 [2015] NSWSC 865

Supreme Court New South Wales

Medium Neutral Citation: Darren John Ciavarella v Hargraves Secured Investments Ltd ACN 089 001 267 [2015] NSWSC 865 Hearing dates: 15 June 2015 Date of orders: 15 June 2015 Decision date: 01 July 2015 Before: Kunc J Decision: Application for injunction dismissed Catchwords: INJUNCTIONS – Injunction to restrain mortgagee's power of sale – Application brought at last possible moment – Discretionary considerations militated against relief even if serious questions to be tried made out – Real Property Act 1900, s 57(2)(b) – Conveyancing Act 1919, s 92 Legislation Cited: Conveyancing Act 1919 (NSW) Farm Debt Mediation Act 1994 (NSW) Real Property Act 1900 (NSW) Cases Cited: Waterwood Hotel Management Pty Ltd v KOP International Pty Ltd & Anor. [2015] NSWSC 852 Category: Procedural and other rulings Parties: Darren John Ciavarella (First Plaintiff) Shirley Lynette Ciavarella ATF the Estate of Matteo Donato Ciavarella (Second Plaintiff) Hargraves Secured Investments Ltd ACN 089 001 267 (Defendant) Representation: Counsel: A. Cornish (Plaintiffs) R.A.M. Mulquiney (Solicitor) (Defendant)

Solicitors: Blueprint Law (Plaintiffs) Hargraves Legal (Defendant) File Number(s): 2015/177740 Publication restriction: No

Judgment

Summary 1. After hours on the afternoon of 15 June 2015 the plaintiffs (the "Ciavarellas") moved the Court in its Duty List for urgent interlocutory relief seeking to restrain the defendant, Hargraves Secured Investments Ltd ("Hargraves"), from exercising its mortgagee's power of sale by selling two properties at auction fixed for 9.00am and 10.30am the next day, 16 June 2015. I commenced hearing the Ciavarellas' application at 4.50pm. The hearing concluded just over three hours later, at which time I dismissed the application by making these orders: 1. Paragraphs 1 to 3 of the Summons are dismissed. 2. The plaintiffs are to pay the defendant's costs of the hearing of today. 3. Summons listed before the Duty Judge for further directions on 19 June 2015. 1. These are the reasons for those orders. At the hearing the Ciavarellas were represented by Mr A. Cornish of Counsel and Hargraves by Mr R.A.M. Mulquiney, Solicitor. 2. While the Court was not satisfied that the Ciavarellas' complaints (in particular concerning the validity of the notice given under s 57(2)(b) of the Real Property Act 1900 (NSW) (the "RPA") dated 2 April 2015 (the "Notice")) gave rise to a serious question to be tried, even if there were assumed to be a serious question to be tried the Court nevertheless dismissed the application on the balance of convenience and as a matter of discretion because: 1. The Ciavarellas had not acted in a timely fashion in bringing the application and there was no adequate or proper reason for that dilatory conduct. 2. There was no evidence of any possibility of the Ciavarellas obtaining refinancing either promptly or at all. 3. The Ciavarellas had already had the benefit of a significant forbearance by Hargraves under a settlement agreement reached at a farm debt mediation, which agreement the Ciavarellas had breached for no or no satisfactory reason. 4. There was a serious risk that the amount of the Ciavarellas' debts would exceed the value of the properties securing their indebtedness to Hargraves.