Mortgagor fails in last minute bid to stop auction

Bill Stark has posted an interesting article on his blog about a case concerning a defaulting mortgagor’s last minute unsuccessful attempt to prevent the sale of the mortgaged land. See: Melbourne Property Law Blog. Attempts by mortgagors to prevent sales proceeding are rarely successful and the price for an injunction preventing a sale proceeding is usually payment of the amount owing into court.

In the case analysed by Bill (Pearl Beach Property Administration Pty Ltd v Wisewoulds Nominees Limited [2014] VSC 113) the mortgagee advertised the property for sale at an auction with an expected price range of $3,900,00 – $4,200,000. The day before the auction the borrower “sold” the land for $5,000,000; however, the mortgagee did not consent to the proposed sale preferring to go to auction. The borrower sought an injunction on the day of the auction alleging that the mortgagee had breached its duty to act “in good faith and having regard to the interests of the mortgagor” under s.77(1) of the Transfer of Land Act 1958 and/or its obligations to the mortgagor under s.420A of the Corporations Act.

The alleged bad faith was the mortgagee marketing the property for sale in a price range that was less than the valuation of $4,800,000 allegedly obtained by it. Despite the mortgagee not appearing at the hearing of the injunction the injunction was refused. Justice Dixon held at [21] that “It was not properly open to infer a want of good faith or want of reasonable care in the conduct of the proposed sale from the fact that the property has been advertised as available within a range that is below the sworn valuation”. His Honour said that under quoting did not mean that the property was likely to be sold at an undervalue at auction. There is authority that a mortgagee is not bound to withdraw a property from auction merely because private offers are made See: Southern Goldfields Ltd v General Credits Ltd (1991) 4 WAR 138. See also Qorum Pty Ltd v Younger (1995) NSW Conv R 55-738 (BC9504362). While it is usual for a mortgagee to sell mortgaged property by auction it is not a breach of duty by the mortgagee if property is sold by private contract. See: s77(1) of the TLA. However, where land is sold by private contract it is desirable for the mortgagee to obtain one or more estimates of the value of the mortgaged property from competent estate agents. See: Croft and Hay The Mortgagee’s Power of Sale, 2012, para 6.2. It is not a breach of duty merely because land is sold by private contract without advertising: the question is always whether the land sold in good faith and for a fair price. See: Vasiliou v Westpac Banking Corporation (2007 19 VR 229. The critical issue is the price obtained and not the presence or absence of advertising. See: Vasiliou at [63]. A mortgagee may also not be acting in bad faith by proceeding with an auction despite the existence of a lucrative offer for private sale if there is no evidence that the purchaser will be able to perform its obligations under the contract. See: Esanda Finance Corporation Ltd v C Conti (unreported, Supreme Court of Queensland, 15 January 1993, BC9303066).