FEDERAL COURT OF AUSTRALIA

Burge v Commonwealth Bank of Australia [2016] FCA 1159

ORDERS

THE COURT ORDERS THAT:

1.    The Interlocutory Application filed by the applicant on 21 September 2016 be dismissed.

2.    The applicant pay the first and third respondents’ costs of and incidental to that Interlocutory Application.

3.    This proceeding be wholly dismissed as against the second respondents.

4.    The applicant pay the costs of the second respondents of and incidental to this proceeding.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

FOSTER J:

1    Yesterday, the applicant, Susan Burge, made an ex parte application to the Commercial and Corporations Duty Judge in the Sydney Registry of the Court for the urgent listing of an application for an interlocutory injunction to restrain the first respondent (CBA) from selling by auction the property known as 127 Elphin Road, Newstead, Tasmania (the Elphin Road property) which is programmed to take place tomorrow (23 September 2016). She also claimed an injunction to restrain the sale of her personal property presently held by the CBA. However, the principal focus of her application was on the auction of the Elphin Road property.

2    The Duty Judge acceded to the application made to him yesterday by listing the applicant’s application for an interlocutory injunction at 2.15 pm today before me and by abridging the time for the service of all relevant materials.

3    In support of her application, the applicant read a very lengthy affidavit sworn by her on 20 September 2016 (incorrectly dated as 20 September 2017), a further affidavit sworn by her earlier today (22 September 2016) and an affidavit of her solicitor, Mr Lorne Thomas Havenstein, sworn earlier today.

4    The respondent parties have had very little time to address the applicant’s application but have placed before the Court certain materials which I admitted into evidence and marked as Exhibit 1.

5    The final relief claimed by the applicant is specified in her Originating Application filed yesterday (21 September 2016).

6    In that Originating Application, the applicant claims declarations, injunctions, damages or compensation, interest and costs. She also claims writs of certiorari, prohibition and mandamus.

7    As against the CBA, the applicant seeks an order setting aside two credit contracts entered into by her with the CBA. As to the first, she relies upon s 12BC and s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth), the Uniform Consumer Credit Code (UCCC), reg 209 promulgated under the UCCC and general equitable principles. As to the second, she relies upon the same provisions as well as s 912A and s 1041H of the Corporations Act 2001 (Cth) and Pt 4 Div 1 and Div 2 of the National Credit Code. She also relies upon general equitable principles. The applicant alleges that she was induced to enter into both of those credit contracts by misleading and deceptive conduct and unconscionable conduct on the part of the CBA. In particular, her complaint about the second credit contract is that, to the knowledge of the CBA, that contract was an unsuitable product for the applicant. She claims that the funds advanced pursuant to that credit contract were not likely to be able to be repaid by the applicant and that the CBA also knew this.

8    The later of the two credit contracts under challenge was secured by a mortgage over the Elphin Road property and by other real property security.

9    The applicant also seeks to set aside agreements made between the CBA and her by which proceedings in the Supreme Court of Tasmania were settled.

10    In respect of those settlement agreements, the applicant alleges that, in agreeing to the terms thereof, she proceeded upon a fundamental misapprehension of fact and law induced by the CBA, namely that the two credit contracts to which I have referred at [7] above were valid and enforceable even though, according to the applicant, in fact, they were neither valid nor enforceable.

11    The applicant also seeks final relief against the second and third respondents, the detail of which does not matter for present purposes.

12    Counsel for the applicant conceded that this Court has no jurisdiction to grant any of the relief which the applicant claims against the second respondents. In light of that concession, I propose to dismiss the claims made by the applicant against those respondents and to do so today. Nonetheless, the applicant presses her claims for final relief against the CBA and against the third respondent, Financial Ombudsman Service Limited (FOS).

13    The claims for final relief against the CBA concerning the Elphin Road property are found in Prayers for relief 2, 3, 4, 5, 6, 7, 10, 11, 12, 13 and 15 of the Originating Application.

14    The dealings between the applicant and the CBA began in 2008. It is neither necessary nor desirable to traverse the entirety of the history of those dealings in order to deal with the present application. However, it is incumbent upon me to address some of the events leading up to the making of the present application in order to explain the context in which it is made and also to address both the question of whether there is a serious question to be tried and the question of whether the balance of convenience and justice favours the grant of the injunction sought by the applicant or the refusal of interlocutory injunctive relief.

Background

15    In 2008, the applicant obtained loan funds under a credit contract with the CBA dated 28 October 2008 (account number 10303682) in the amount of $300,000. That loan was secured by a mortgage over property owned by the applicant and her former husband at 16–18 Reuben Court, Kings Meadows, Tasmania.

16    As I have already mentioned, the applicant makes claims for final relief in the present proceeding in respect of that loan, but those claims are not directly relevant to her current claim for interlocutory injunctive relief. Her claim for interlocutory relief concerns the second loan which was initially made in May 2010. The evidence disclosed that that loan was varied in 2011 and again in 2014. The amount originally advanced under the second credit contract was $500,150 (Home Loan Account Number 838932805) and was secured by a mortgage over the Elphin Road property and a mortgage over another property owned by the applicant known as 15 Abbott Street, East Launceston (the Abbott Street property).

17    The applicant encountered difficulties in complying with the obligations which she undertook under the two credit contracts which she had entered into with the CBA. This led to the applicant approaching FOS on 24 September 2012 with a request that FOS investigate and determine a dispute between the applicant and the CBA.

18    On 13 August 2014, FOS notified its determination in respect of the dispute which had been referred to it by the applicant.

19    As I understand the way in which the FOS arrangements work, a participating financial institution (in this case, the CBA) voluntarily agrees to submit the resolution of certain disputes to the FOS system, thereby ceding to FOS the power to determine on a final and binding basis certain types of disputes with its customers if the customer chooses to engage with FOS for that purpose. By way of contrast, the customer has the right to elect between accepting the FOS determination once made or not accepting that determination. The idea behind this process seems to be that one way of addressing what may be an obvious imbalance between the bargaining position of a bank and that of its customers is to provide this opportunity to the customer to secure an independent determination in respect of the customer’s complaint while at all relevant times retaining the right not to accept that determination.

20    The determination in the present case resulted in a recommendation by FOS that the applicant be given the benefit of a substantial reduction in the amount which she was obliged to pay to the CBA pursuant to the two credit contracts in question. In effect, her interest bill was recalculated and reduced.

21    On or about 12 September 2014, the applicant accepted the FOS determination but added next to her signature on the form of acceptance the words “under duress” in brackets.

22    This qualification placed by the applicant upon her acceptance of the FOS determination caused further disputation between the applicant and the CBA which also involved FOS. Ultimately, in about early October 2014, the CBA gave effect to the FOS determination by recalculating the amounts due under the two credit contracts in question in accordance with the requirements specified in the FOS determination. I pause to note that, in the present proceeding, the applicant argues that, notwithstanding that she signed a form accepting the FOS determination, she never bound herself to accept the FOS determination.

23    In late 2014, the applicant lodged further disputes with FOS, but FOS declined action in respect of these additional disputes. It argued it had already determined all relevant matters as between the applicant and the CBA.

24    In the meantime, on 13 April 2014, the CBA commenced proceedings pursuant to s 146 of the Land Titles Act 1980 (Tas) in the Supreme Court of Tasmania, Hobart Registry (proceeding No 256 of 2015) for possession of the Abbott Street property and of the Elphin Road property.

25    On 2 June 2015, the applicant commenced an action for damages against the CBA in the same Court (proceeding No 532 of 2015).

26    On 17 June 2015, the applicant filed an Interlocutory Application in proceeding No 532 of 2015 in which she sought an order that the CBA be restrained from taking possession of the Elphin Road property and of the Abbott Street property until further order or until an agreement between her and the CBA is reached. At the same time, she also sought an order staying proceeding No 256 of 2015 until further order.

27    On 22 June 2015, that Interlocutory Application came before Holt AsJ. The applicant was represented on that day by an experienced lawyer. The CBA was represented by Senior Counsel. I have read the transcript of the exchanges in argument on that day. I do not think it is necessary to refer to that material in any detail. During the course of the morning, certain discussions took place between the legal representatives of the parties which led to the application then before the Court being resolved by consent.

28    The orders of the Court which were made on 22 June 2015 in proceeding No 256 of 2015 (the 22 June 2015 Orders) were in the following terms:

THE COURT ORDERS BY CONSENT THAT –

1.    Unless in the meantime all money due under memorandum of mortgage number C970922 is paid, possession of the premises described in folio of the register volume 41683 folio 1 is to be given by the respondent Susan Burge to the applicant Commonwealth Bank of Australia (A.B.N. 48 123 123 124) on or before the 90th day following service of this order by postage or otherwise and where service is effected by post the order shall be deemed to have been served on the second business day following the date of posting.

2.    Unless in the meantime all money due under memorandum of mortgage number C970922 is paid, possession of the premises described in folio of the register volume 91917 folio 16 is to be given by the respondent Susan Burge to the applicant Commonwealth Bank of Australia (A.B.N. 48 123 123 124) on or before the 150th day following service of this order by postage or otherwise and where service is effected by post the order shall be deemed to have been served on the second business day following the date of posting.

29    Order 2 made by his Honour on that day is the order which related to the Elphin Road property. Order 1 related to the Abbott Street Property.

30    The effect of Order 2 was that the applicant was given time to repay her debt to the CBA, failing which the bank was to be given possession of the Elphin Road property. The time allowed to the applicant under the 22 June 2015 Orders in respect of the Elphin Road property was 150 days following service of the orders made that day. That is a period of approximately five months.

31    The 22 June 2015 Orders were served on the applicant on 2 July 2015. Thus, under the 22 June 2015 Orders, the applicant had until the end of November 2015 to pay the CBA in full, failing which the CBA would be entitled to possession of the Elphin Road property.

32    On 30 July 2015, in proceeding No 532 of 2015, the applicant filed an Amended Statement of Claim in which she claimed that the second credit contract was void. She also claimed damages and declaratory relief against the CBA in respect of the CBA’s alleged unconscionable conduct under various statutory provisions and breach of the National Consumer Credit Protection Act 2009 (Cth).

33    On 7 October 2015, the CBA obtained a Writ of Possession in respect of the Abbott Street property. On 6 November 2015, the CBA took possession of that property.

34    On 28 January 2016, the applicant filed an Interlocutory Application in proceeding No 532 of 2015 in which she sought the following relief:

1.    Pursuant to rule 887 of the Supreme Court Rules 2000 (Tas) the defendant is restrained from selling the property of 15 Abbott Street, East Launceston in Tasmania and is further restrained from taking possession and selling the property at 127 Elphin Road, Launceston in Tasmania until further order of this Court or agreement between the plaintiff and the defendant;

2.    Any further orders that seem appropriate to the Court.

35    Although Counsel for the applicant submitted to me today that the application made by the plaintiff on 28 January 2016 was not an application in which she sought an injunction restraining the sale of the Elphin Street property, the text of the application makes clear that included within the relief which she sought was such an injunction. I reject Counsel’s submission to the contrary.

36    The injunction application which the applicant had filed on 28 January 2016 came before the Court on 10 February 2016. On that day, that application was dismissed and the question of costs was reserved. That application was heard by Holt AsJ. His Honour gave reasons for the decision which he made on that occasion. The applicant included those reasons in her first affidavit at pages 351 to 355.

37    On 12 February 2016, the Abbott Street property was sold at auction.

38    On 26 February 2016, the CBA took possession of the Elphin Road property by executing a Writ of Possession which it had previously obtained from the Supreme Court of Tasmania.

39    On 7 March 2016, a preliminary question came on for trial before the Supreme Court of Tasmania in proceeding No 532 of 2015. On that occasion, the entirety of that proceeding was resolved by agreement between the parties. The agreement was recorded in a Deed of Settlement and Release dated that day. That Deed was in the following terms:

THIS DEED OF SETTLEMENT AND RELEASE is made the 7th day of March 2016 BETWEEN Commonwealth Bank of Australia (ABN 48 123 123 124) (“the Bank”) AND SUSAN BURGE (“Burge”)

WHEREAS the parties are in dispute in respect of Burge’s alleged liabilities to the Bank and the Bank’s alleged liabilities to Burge.

Without any admission of liability by either party the parties have agreed to fully and finally settle all disputes between them on the terms of settlement set out in this deed of settlement and release.

1.    Burge is to consent to a direction or order that judgment be entered for the Bank in Supreme Court of Tasmania action No. 532 of 2015 (“the action”) together with costs:

(a)    That are agreed in the sum of $50,000.00 in the event that payment is made in accordance with clause 2 hereof; or

(b)    Are to be taxed in the event that it is not.

2.    On or before 18 April 2016 Burge will pay to the Bank the sum of $452,469.71 (which sum will include $50,000.00 for the agreed costs of the action) less the net proceeds of sale of the property known as 15 Abbott Street East Launceston.

3.    If Burge does not pay the amount referred to in clause 2 on or before 18 April 2016 then the Bank will exercise its power of sale in respect of the property known as 127 Elphin Road Newstead and the amount that Burge is to pay to the Bank will become:

•    $402,469.71 (together with the defendant’s costs of the action as taxed or agreed, and the defendant’s costs of Supreme Court proceedings No. 256 of 2015 in accordance with the loan agreement and the mortgage);

•    Together with interest on the sum of $335,628.37 at the rate of 5.87% per annum from 8 March 2016 until payment; and

•    Together with the costs of the sale in accordance with the loan agreement and mortgage in respect of that property;

•    Less the proceeds of the sale of the properties known as 15 Abbott Street East Launceston and 127 Elphin Road Newstead.

4.    The Bank undertakes that it will not take any steps to have judgment entered pursuant to the direction or order referred to in clause 1 before 18 April 2016.

5.    Burge releases and forever discharges the Bank from all and any liability past, present or future and from all claims suits demands actions or proceedings arising out of or connected with:

(a)    Any and all loan accounts conducted with the Bank by her either alone or in conjunction with any other person or entity at any time at or before the date of this deed;

(b)    Any and all securities given to the Bank by her either alone or in conjunction with any other person or entity at any time at or before the date of this deed.

6.    Burge will withdraw any complaint made to the Finance Ombudsman Service, the OAIC, ASIC, Tasmania Police, the Australian Federal Police and any State or Federal authority and will not make any further complaint to any State or Federal authority in respect of any of the matters referred to in clause 5.

7.    The Bank and Burge will keep the provisions of this deed of settlement and release and all negotiations resulting in the deed confidential save as either may be required to disclose such matters to their legal or financial advisers or as otherwise required by law.

8.    Neither Burge nor the Bank will disparage or denigrate the other.

9.    The laws of Tasmania govern this deed and each party agrees to submit to the jurisdiction of the Courts of Tasmania.

40    Clause 3 of the Deed of Settlement and Release executed on 7 March 2016 expressly provided that, if the additional time allowed to the applicant under the Deed to pay the amount due as specified in cl 2 thereof was not paid on or before 18 April 2016, then the CBA would exercise its power of sale in respect of the Elphin Road property.

41    The moneys required to be paid under the Deed of Settlement and Release were not paid in accordance with the terms of that Deed. Accordingly, on 20 April 2016, judgment was entered for the CBA against the applicant in proceeding No 532 of 2015. The applicant was also ordered to pay the CBA’s costs as taxed if not agreed.

42    It is apparent from the above account of the dealings between the parties that, from early 2016 at the latest, the CBA has made clear that, if its debt is not repaid in full within the timeframes agreed with the applicant, it would take possession of the Elphin Road property and sell that property at a time and in a manner to be determined by the CBA. It seems to me that it made that position very plain. However, whether it spelled out its intention to sell in express terms or not, it certainly made clear that it intended to take possession of that property. One of the natural incidents of a secured creditor taking possession of real property comprising or forming part of its security is the real potential for that creditor to exercise its power of sale under its security. After all, in most cases, why else would the secured creditor take possession of its security property? In addition, it seems to me to be quite clear that, at all times from early 2016 at the latest, the applicant understood that there was a real possibility that the CBA would take steps to take possession of and sell the Elphin Road property. This is demonstrated by the terms of the Interlocutory Application which she filed on 28 January 2016.

43    On 4 July 2016, solicitors then acting for the applicant sent an email to the solicitors acting for the CBA. That email was in the following terms:

Mr. Patrick Lunn

Simmons Wolfhagen Lawyers

168 Collins Street

Hobart TAS 7000

Dear Sir,

We refer to the action pending by Commonwealth Bank of Australia (whom we understand you act for) in respect of the threatened sale of real and personal property of Ms. Susan Burge as from tomorrow. We act for her in respect of that issue.

Given the circumstances, Ms. Burge requires your client’s undertaking by midday tomorrow, 5 July 2016 to stay the sale of her property for a period of one calendar month to allow Ms. Burge to commence proceedings in the Federal Court of Australia to set aside the security and loan contract arrangements in respect of the property your client is pursuing on the grounds of arguable contraventions of the National Credit Code and the Australian Securities and Investment Commission Act 2001. We note that unless such undertaking is given by the time stipulated, Ms. Burge intends on filing an urgent injunction application in the Federal Court of Australia to prevent your client from taking action against her property.

We await your confirmation.

Yours faithfully

(Emphasis in original.)

44    This email demonstrates that, at least as far as the applicant was concerned, as at 4 July 2016, she understood that the CBA was threatening to sell both her Elphin Road property and her personal property as early as the very next day, 5 July 2016.

45    By email sent in response, the CBA declined to accede to the applicant’s request to provide an undertaking not to sell the Elphin Road property for one month. In that email, the CBA said:

Dear Sir,

This is an open e-mail.

We refer to your e-mail set out below.

We attach for your reference:

1.    a copy of sealed consent orders that were made by the Supreme Court of Tasmania in Hobart Registry matter no. 256 of 2015 on 22 June 2015 when your client appeared in Court with her former legal practitioner Mr Fred Lester from the law firm Clarke and Gee;

2.    a copy of an amended statement of claim filed on behalf of your client in Supreme Court of Tasmania Launceston District Registry Action No. 532 of 2015 on 30 July 2015 together with our client’s defence to the amended statement of claim filed 31 August 2015;

3.    a copy of deed of settlement and release executed by your client on 7 March 2016; and

4.    a copy of a consent judgment that was entered in Supreme Court of Tasmania Launceston District Registry Action No. 532 of 2015 on 20 April 2016 upon the consent of the parties and by order of a judge that was made in the presence of your client and her former barrister Mr James Kewley on 7 March 2016.

You may or may not also be aware that a previous application made by your client to attempt to restrain our client from exercising its power of sale in respect of this property was heard and refused by the Supreme Court of Tasmania on 10 February 2016.

Our client declines your client’s request to provide her with the undertaking that she seeks.

We have instructions to accept service of any proceedings your client chooses to commence against our client.

Kindly advise the basis upon which you say that your client has any extant cause of action against our client.

Yours faithfully

46    No steps were taken by the applicant on or after 5 July 2016 to restrain the CBA from selling the Elphin Road property until 6 September 2016 when she made an application to a single judge of the High Court of Australia in which she sought Constitutional Writ relief, the effect of which was to restrain the auction of the Elphin Road property which is programmed to take place tomorrow. That application was heard on 15 September 2016 and was dismissed with costs on that day.

Serious Question to be Tried

47    In her Originating Application and in oral submissions made on her behalf before me today, the applicant describes the serious question to be tried which she says will be the subject of a claim for final relief in this proceeding, as her application to have declared void and of no effect or to have set aside on various bases the second credit contract for $500,150 and its associated mortgages (including, in particular, the mortgage over the Elphin Road property) and any subsequent variations thereof. The applicant contends that the second credit contract into which the applicant entered with the CBA was entered into in circumstances where she was the victim of unconscionable conduct, misleading and deceptive conduct and conduct in contravention of the National Credit Code as well as conduct which will sound in relief in equity.

48    Thus, the serious question to be tried is whether or not the loan contract and its associated mortgages should be set aside or declared void and whether, upon the making of such orders, the power of sale now sought to be relied upon, based upon cl 22.5(d) of the relevant mortgage document, would automatically become null and void and of no effect or should, in any event, be set aside. Given the time constraints under which we are all presently operating, it is not necessary for me to traverse other claims for relief in the Originating Application for present purposes.

49    On the question of whether there is a serious question to be tried in relation to the claims for relief which I have described at [47] and [48] above, the CBA submitted that, in light of the reasons given by Gordon J last week in relation to the application brought by the applicant in the High Court, I should conclude that there is no serious question to be tried.

50    The CBA also relied upon notions of issue estoppel and res judicata.

51    Counsel for the applicant contended that none of the judgments in the Tasmanian Supreme Court operated as a res judicata or issue estoppel in respect of the question now sought to be agitated in this Court. He also submitted that, because the Deed of Settlement and Release dated 7 March 2016 was legitimately under challenge, I should give little weight to the settlement reflected in that document and that, in any event, that Deed did not operate to prevent his client making the present application.

52    There are serious difficulties with the applicant’s claim now made in this Court to have the second credit contract and associated mortgages set aside or declared void. Some of those difficulties are presented by the existence of the judgments in the Tasmanian Supreme Court. As Gordon J observed last week in the High Court (High Court transcript 36, lines 1519-1520), the judgments of the Supreme Court of Tasmania determined the rights of the CBA to possession of the Elphin Road property. Further, as her Honour pointed out at that time, until this week, the applicant had not yet applied to stay or appeal from any of those judgments nor had she applied for leave to appeal from any of those judgments out of time. This latter point has now been addressed. Apparently, on Monday of this week, the applicant took steps to obtain an extension of time in which to challenge at least one of those judgments.

53    It is not only the judgments in the Supreme Court of Tasmania which present difficulties for the applicant on the question of whether there is a serious question to be tried. The Deed of Settlement and Release (if valid and of continuing effect) operates to prevent the applicant challenging the proposition that the CBA was entitled to possession of the Elphin Road property in accordance with the terms of that Deed. The CBA argued before me that the Deed also operated to prevent the applicant from contending that the CBA is not entitled to sell that property since, once in possession, the CBA was entitled also to sell that property.

54    Counsel for the applicant submitted that, given that there was no res judicata or issue estoppel arising out of the Tasmanian Supreme Court judgments and given that the Deed of Settlement and Release was being challenged by the applicant in the present proceeding, I should take into account those matters as well as the recent filing of an application in the Supreme Court whereby the applicant now belatedly seeks to agitate appeal rights from those judgments on the question of whether there was presently a serious question to be tried.

55    It seems to me that when one considers the history of the matter and the way in which the applicant has formulated the serious question to be tried, she has very weak prospects indeed of successfully having the mortgage over the Elphin Road property set aside or declared void.

56    In Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238 at 260–261 [66]–[67], the Full Court expressed the view that the strength of the serious question to be tried was relevant in weighing up the ultimate outcome on an application such as this and in particular had to be weighed in the balance when it came to a consideration of the balance of convenience and justice to which I now turn.

Balance of Convenience and Justice

57    Last week, at High Court transcript 36 line 1554 to transcript 37 line 1580, Gordon J said that, even if she had held that the High Court had jurisdiction to entertain the application then being made to her and even if there was a serious question to be tried, she would have refused the application for interlocutory relief on discretionary grounds and set out her reasons for that opinion in the following terms:

(1)    the plaintiff has not proffered an explanation for the delay in this application;

(2)    the plaintiff has failed to pay into Court or otherwise provide security for the amount due under the mortgages: see Inglis v Comonwealth Trading Bank of Australia (1972) 126 CLR 161; [1972] HCA 74;

(3)    damages are likely to be an adequate remedy;

(4)    despite the plaintiff’s submissions, I do not accept that the plaintiff has provided evidence that any undertaking as to damages would be valuable; and

(5)    the CBA, as mortgagee, has possession of the Elphin Road Property.

58    Counsel for the applicant endeavoured to explain and discount or negate the various discretionary considerations which her Honour thought might be taken into account against the grant of the injunction which the applicant seeks and has also sought to meet submissions likely to be put against the applicant by the CBA in respect of those matters.

59    First of all, in respect of delay, Counsel for the applicant submitted that the only period during which delay was relevant was from about 22 August 2016 (when the applicant says she first appreciated that the CBA was going to sell the Elphin Road property) and that, by her second affidavit, the applicant had satisfactorily explained that delay. In particular, Counsel referred me to paragraphs 3 to 17 of the applicant’s affidavit sworn today. I have read those paragraphs and considered them carefully. It is not necessary to traverse the detail of those paragraphs. In essence, the applicant says that, at no time before 22 August 2016, did she appreciate that steps were going to be taken by the CBA to sell the land and that, immediately after that, she took steps to obtain legal assistance in order to try to prevent such a sale.

60    In paragraph 16 of her second affidavit, the applicant refers to an application made to the Commonwealth Attorney-General’s Department, from whom she says she has obtained some assistance. In the same paragraph she says that it has only been since 10 August 2016 that she has been in a position to move the Court for urgent interlocutory relief.

61    As the above chronology plainly indicates, the applicant should be taken to have been well aware at all times since about late 2015 that the CBA was taking steps to place itself in a position where it could sell the Elphin Road property. No doubt that is why she made the application which she made on 28 January 2016 and no doubt that is why she sought more time to bring her loan arrangements into order as reflected in the Deed of 7 March 2016.

62    In my opinion, the relevant period starts from early 2016 at the latest.

63    When viewed in that light, even if one were to accept some of the reasons advanced by the applicant in her affidavit sworn today in respect of the period post 22 August 2016, there is no explanation as to why nothing was done before then. In particular, there is no explanation as to why, having appreciated that the matter was urgent as long ago as 4 July 2016, the applicant did absolutely nothing until 6 September 2016 when she filed her Constitutional Writ application in the High Court.

64    Counsel for the applicant then referred to the question of irreparable injury. In this regard he relied in particular upon paragraphs 18 to 44 of the applicant’s affidavit sworn today.

65    I can readily understand the emotional response which the applicant has had to the prospect of losing the home in which she has lived for some time and in which she has brought up her daughter. That is a matter which, in an appropriate case, might carry some weight. However, in the present case, because the matter has dragged on for such a long time and the applicant has failed to take appropriate steps during that period, I am not disposed to accord much weight to the familial and more sensitive matters addressed by her in that portion of her affidavit.

66    Next, Counsel for the applicant submitted that, were I to grant the injunction, there would be no detriment to the CBA. He pointed to the fact that the current debt to the CBA is approximately $209,000 (according to the bank’s view of life) and $87,000 (according to the applicant’s view of life). He submitted that the Elphin Road property was more than adequate security for the amount of the debt currently claimed by the CBA. He also pointed out that the CBA has possession of a good deal of the applicant’s personalty which she estimated to have a value of $330,000. I note, however, that there was no independent or objective evidence before me as to the valuation either of the Elphin Road property or of this personalty.

67    As matters presently stand, and weighing in the balance my assessment of the strength of the applicant’s case in respect of the postulated serious question to be tried, I do not think much weight can be given to the circumstances to which I have referred at [64]–[66] above in favour of the applicant. In particular, she does not offer as a condition of the injunction to pay the amount which she concedes is due (the $87,000 approximately) to the CBA or into Court and confines herself to referring to the personalty held by the CBA as providing adequate security both for her undertaking as to damages and for the debt itself. In truth, I cannot be satisfied that any security of substance is being offered by the applicant as security for that undertaking.

68    Next, Counsel addressed the principle in Inglis v Commonwealth Trading Bank of Australia (1971) 126 CLR 161 (Inglis). He advanced three reasons why Inglis was distinguishable in the present case. The first reason was that, in this case, the applicant is challenging the CBA’s power of sale itself. In those circumstances, relying upon the case of Smith v Kench [2001] TASSC 75, Counsel for the applicant submitted that Inglis did not apply. Second, Counsel also submitted that the value of the personalty meant that the CBA was adequately secured in any event. Third, he submitted that the Court should infer that, had the applicant made a tender of the correct amount due to the CBA, on the balance of probabilities, that tender would have been rejected. He referred to some matters of history concerning the Abbott Street property in support of this last proposition.

69    True it is that the applicant is challenging the validity of the very power of sale sought to be exercised by the CBA. However, the mere fact that that is occurring is not necessarily a reason for distinguishing the Inglis principle. The Court would have to come to some view about the strength of that case in order to give any weight to this matter as a point of distinction. In Smith v Kench, the parties challenging the security documentation in that case were in fact cross-examined and the Chief Justice, who heard the case, was in a position to make some assessment about the strength of the plaintiff’s case. Here, I have already indicated that I consider the applicant’s prospects in respect of the serious question to be tried to be very weak. I have already addressed the question of whether the debt is adequately secured. In addition, I do not place much weight upon the notion that the tender of the proper amount would have produced a rejection. The applicant has never tendered the proper amount. In those circumstances, little weight can be given to the theoretical possibilities foreshadowed by Counsel in his submissions.

70    The essence of the present application really is that, having been aware from late 2015 onwards of the real possibility that the Elphin Road property could be sold by the CBA at any time thereafter, the applicant has undertaken various steps or manoeuvres to endeavour to hold onto that property without success. On 7 March 2016, by the Deed of Settlement and Release executed on that day, the applicant promised to pay to the CBA $452,469.71 less the amount of the net proceeds of the sale of the Abbott Street property failing which the CBA would be entitled to exercise its power of sale over the Elphin Road property and also be entitled to a much larger sum as the debt due to it (as to which, see cl 2 and cl 3 of the Deed). This arrangement had the effect of allowing more time to the applicant to pay her debt to the CBA, yet again. Subsequently, having learned of the actual timing of the sale of the Elphin Road property probably as early as 10 August 2016 but by no later than 22 August 2016, the applicant did nothing until 6 September 2016 when she filed her application in the High Court. Having failed in the High Court, the applicant, now comes to this Court two days before the auction and asks for an interlocutory injunction restraining the CBA from proceeding with that auction.

71    In my view, the balance of convenience and justice, when properly understood, is against the grant of interlocutory relief.

Conclusion

72    For all of the above reasons, I refuse the application. I order that the Interlocutory Application filed by the applicant on 21 September 2016 be dismissed.

73    I also order the applicant to pay the costs of the first and third respondents of and incidental to that Interlocutory Application.

74    In addition, I order that the whole proceeding be dismissed as against the second respondents. I order the applicant to pay the costs of the second respondents of and incidental to the proceeding.

Associate:

Dated:    3 November 2016