By Deed of Loan dated 21 December 2006, Provident (“the Plaintiff") lent the First Defendant (“D1") the sum of $5.7m. On the same day, in order to secure the monies advanced, D1 granted a goods mortgage to Provident (the Goods Mortgage) and a real property mortgage over the property known as "Barry Station".
The effect of the Goods Mortgage was to charge all of the personal property of D1 that was intended to be, or which was in fact, used for his farming business, wherever it was conducted.
On 25 June 2010, by short form of statement of claim for possession against a mortgagor, Provident commenced these proceedings against D1 seeking a judgment for possession of Barry Station (the Possession Proceedings)
On 26 August 2010, D1 and the second Defendant (“D2") filed consent orders in proceedings brought by D1 against D2 in the Family Court (the Family Court Consent Orders)
By application filed on 11 May 2011 in the Possession Proceedings, Provident applied for an order to join D2 as second defendant and also sought orders restraining her from disposing of cattle which have been removed from Barry Station. D2 was joined as second defendant to those proceedings.
On 30 April 2012, it came to the attention of Provident that D2 had advertised four items for sale on an Internet site, one of which was already listed as sold.
By letter dated 2 May 2012, solicitors for the Plaintiff brought this matter to the attention of solicitors for D2 and requested undertakings that no further items be sold and that the proceeds of any sold items be paid into court or into a controlled money account.
On 3 May 2012, solicitors for D2 advised solicitors for Provident that three of the four items had in fact been sold and gave the undertakings sought until 17 May 2012.
By oversight, the solicitors for Provident did not take any further action to obtain either an extension of the undertakings of an order of the Court until 15 May 2012, when the solicitors for Provident realised the imminent expiry of the undertakings.
On 16 May 2012, Provident sought an extension to those undertakings which was not forthcoming.
Accordingly, on 16 May 2012, Provident approached the Court for short service.
On 17 May 2012 the interlocutory application was heard.
The task to be undertaken in an application such as this is to determine:
• Has the Applicant established that it has a prima facie case; and
• Where does the balance of convenience lie.
• Are there any disentitling matters which may make the grant of relief inappropriate?
Prima Facie Case
“The plaintiff must show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial."
(See Beecham Group Ltd -v- Bristol Laboratories Pty Ltd  HCA 1; 118 CLR 618 at 622-623 & Australian Broadcasting Corporation -v- O'Neil  HCA 46; 227 CLR 57 per Gummow and Hayne JJ at )
In determining the facts relevant to such an application, the Court is not entitled to determine facts on any final basis.
(See Shercliff -v- Engadine Acceptance Corporation Pty Ltd  1 NSWLR 729 at 724 and 1st Fleet Pty Ltd -v- Australian Cooperative Foods Ltd  NSWSC 881 per White J at )
Balance of Convenience
Relegation from secured creditor to unsecured creditor was sufficient prejudice to warrant the interlocutory injunction orders being made in this case.
The Court found there were no disentitling matters, such as delay, which would make the grant of relief inappropriate.
The Court granted the relief sought by The Plaintiff.
Of itself this case may not be particularly remarkable. However it is a useful reminder that the reach of the family law goes well beyond the Family Court and into the commercial law arena.
Ross Bowler LLB