Yusofzai v Andask Pty Ltd [2019] NSWSC 124

Supreme Court New South Wales

Medium Neutral Citation: Yusofzai v Andask Pty Ltd [2019] NSWSC 124 Hearing dates: 15 February 2019 Date of orders: 15 February 2019 Decision date: 28 February 2019 Jurisdiction: Common Law Before: Davies J Decision: 1. The plaintiffs' summons filed 15 February 2019 is dismissed.

2. By consent, the plaintiffs pay the defendant's costs fixed in the sum of $6,583.50. Catchwords: INJUNCTIONS – Injunction to restrain mortgagee's power of sale – application brought the afternoon before scheduled auction – where notice of default had been issued under s 57(2)(b) Real Property Act 1900 (NSW) and s 92 Conveyancing Act 1919 (NSW) – whether the notice had been properly served – whether the notice was misleading or invalid – where the notice did not express an immediate intention to exercise mortgagee's power of sale – notice neither misleading nor invalid – whether the lender waived its rights by earlier representations – doctrine of election – no evidence of inconsistent rights – no waiver – balance of convenience – injunction refused

MORTGAGES AND SECURITIES – mortgages - duties, rights and remedies of mortgagee - power of sale – scope of application of National Credit Code – whether notice should have been given under s 88 National Credit Code – debtor not a natural person nor strata corporation – mortgage a genuine commercial arrangement – no notice required under s 88 Legislation Cited: Conveyancing Act 1919 (NSW) ss 92, 170 National Credit Code ss 5(1), 88 Real Property Act 1900 (NSW) ss 57, 58 Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Australia and New Zealand Banking Group Ltd v Bragg (No. 3) [2017] NSWSC 208 Darren John Ciavarella v Hargraves Secured Investments Ltd [2015] NSWSC 865 Morlend Finance Corp (Vic) Pty Ltd v Westendorp [1993] 2 VR 284 Newborough (Lord) v Jones [1975] 1 Ch 90 Northumbrian Ice Cream Co Ltd v Breakaway Vending Pty Ltd [2006] NSWSC 1216 Sargent v ASL Developments Ltd (1974) 131 CLR 634 The Commonwealth of Australia v Verwayen (1990) 170 CLR 394 Websdale v S & JD Investments Pty Ltd (1991) 24 NSWLR 573 Category: Principal judgment Parties: Waise Yusofzai (First Plaintiff) Melissa Yusofzai (Second Plaintiff) Andask Pty Ltd (Defendant) Representation: Counsel: K Madgwick (Plaintiffs) D Turner (Defendant)