Moosun & Ors v HSBC Bank Plc (t/a First Direct)

An applicant seeking to restrain completion of a mortgagee’s sale must provide an arguable basis for intervention supported by credible evidence. A court cannot revisit decisions made by another judge as if exercising an appellate jurisdiction. Evidence that the sale price is lower than an earlier informal valuation is insufficient where the property is affected by an enforcement notice and pre-sale offers support the achieved price. Where any defect in the sale can be remedied after completion by compensation or adjustment of the mortgage debt, and the applicant cannot support a cross-undertaking in damages, the balance of convenience will ordinarily favour allowing completion.

The claimant applied urgently to restrain completion of the sale of her former home following an auction conducted by HSBC as mortgagee in possession. The application also sought to revisit earlier possession proceedings, the planning enforcement history, and an order made by Mann J refusing similar relief on the auction date. The claimant relied principally on an earlier estate-agent valuation, alleged impropriety in the auction, and an asserted ability to pay the mortgage arrears.

The issue was whether there was an arguable basis to interfere with the sale contract and, if so, whether interim relief was justified having regard to the availability of a later compensation remedy, the proposed cross-undertaking in damages, and the balance of convenience.

1. Application dismissed. There was no arguable basis for interfering with completion of the sale of Jasmine Cottage.
2. The court had no jurisdiction to act as an appellate court in relation to planning matters already unsuccessfully challenged, or to revisit the possession order and the decision of Mann J. Nothing material had changed since Mann J considered the matter on 6 August 2015.
3. The auction price of £285,000 did not, by itself, provide a reasonable basis for suspecting impropriety. The earlier proposed marketing range did not reflect the continuing enforcement notice requiring removal of the unauthorised extension. The pre-auction offers were consistent with the price achieved.
4. The claimant produced no reliable evidence that she could discharge the mortgage arrears. The accountants’ letter expressly stated that her current financial status could not be confirmed and therefore did not establish an ability to pay.
5. Even if the mortgagee had failed to obtain a proper price, the claimant could challenge the sale after completion and seek compensation or a reduction in the debt. Preventing completion risked prejudice to the buyer and the bank, while there was no evidence that the claimant could meet a cross-undertaking in damages. The balance of convenience therefore favoured refusing relief.

The judgment records earlier possession proceedings, unsuccessful applications to set aside or appeal the possession order, and an earlier application before Mann J on 6 August 2015. This court refused to reopen those matters and dismissed the present application.