The recent case of DTT Group Pty Ltd v The Trust Company (PTAL) Ltd [2022] NSWSC 1554concerned an urgent ex parte injunction to restrain a mortgagee from exercising the power of sale on the morning the auction was scheduled to occur. A sum of $12 million was owing under a mortgage and notice was provided to the parties under s 57(2)(b) of the Real Property Act 1900 (NSW), and the parties had previously entered into a Deed of Forbearance allowing the Plaintiff further time to pay the secured moneys.
The mortgagee claimed default by the plaintiff under the Deed and payment of the total facility amount. The Plaintiff alleged that the notice of default was invalid and/or that the mortgagee engaged in misleading or deceptive conduct, causing it to lose potential other investors/funders to enable it to pay arrears.
Ordinarily, if a mortgagor wants to restrain a sale, there is a requirement for moneys to be paid into Court. This includes the amount sworn to by the mortgagee as the amount owing or a lesser amount if it appears from the terms of the mortgage instrument that a lesser amount is due.
The plaintiff indicated that they had no prospect of paying such moneys prior to the auction of the property that day. Hence, having regard to the circumstances of the case and the balance of convenience, that arrears would be required to be paid and an undertaking as to damages and as the Plaintiff could not do either of these things, the Court did not grant the injunction.