“[Palk] was a case in which the mortgagee had no wish to realise its security in the foreseeable future, whether by sale or foreclosure. It established that in such a case the mortgagor might obtain an order for sale even though the proceeds of sale would be insufficient to discharge the mortgage debt. It does not support the making of such an order where the mortgagee is taking active steps to obtain possession and enforce its security by sale. Still less does it support the giving of the conduct of the sale to the mortgagor in a case where there is negative equity, so that it is the mortgagee who is likely to have the greater incentive to obtain the best price and the quickest sale. Both these steps were taken in [Barrett]. I have serious doubt whether that case was rightly decided. In fairness to the judge it should be said that it does not appear to have been argued as a matter of principle; the mortgagor’s application was resisted on purely pragmatic grounds, and somewhat feeble ones at that.”
“10. I should, it seems to me, be very cautious about enabling large numbers of claims concerning commercial property in which the mortgagors consider that the property is being sold at an undervalue. I should (and I think this is well supported by the authorities) be slow to interfere with the statutory and contractual rights of a mortgagee in a case where all parties accept that the mortgagor was in default, receivers have been appointed and the mortgagee is entitled to exercise its rights over the property. 11. Although I have sympathy with the position that the claimant and Mr Vitale find themselves in, I am not persuaded that such exceptional circumstances exist here. This is an ordinary case in which a mortgagor of a commercial property has defaulted on a mortgage and all parties are in agreement that the property should be sold. The receivers have taken steps accordingly to market the property.”
“Section 91(2) gives the court a discretion in wide terms. The discretion is unfettered. It can be exercised at any time. Self-evidently, in exercising that power the court will have due regard to the interests of all concerned. The court will act judicially. But it cannot be right that the court should decline to exercise the power if the consequence will be manifest unfairness.”
“I accept, of course, that it must be only in exceptional circumstances that the power will be exercised against the mortgagee’s wishes when a substantial part of the mortgage debt will nevertheless remain outstanding. Whenever a mortgagee can demonstrate a real possibility, let alone a probability, that a refusal or postponement of a sale would be financially beneficial, because of the property’s likely increase in value or because of the extent of the revenue which it would generate in the interim, then the mortgagor’s request for a sale will no doubt be refused out of hand, even though either of these events would also pro tanto inure to his financial benefit. The reason is that when the financial prospects are fairly evenly balanced, let alone when the balance of the argument favours the mortgagee, his wishes should be given preference. An order for sale would deprive him of contractual rights without any fault on his part, and would confer a benefit on the mortgagor to which he is not contractually entitled.”
“out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.” (This was not cited to us, but as an explanation of the ordinary meaning of the phrase “exceptional circumstances”
“There is unfairness, therefore, in this case only if Mr Brooke’s submissions that the property is likely to be sold at an undervalue is correct.”
“I cannot find on the balance of probabilities that the proposed sale is likely to be a sale at an undervalue.”
“I accept that I do not have the evidence before me to quantify any loss, and therefore I do not take into account the possibility that the sale may eventually be at a still lower value than the present£4.75 million , it is right to note that there would be additional costs associated with the sale if the Claimant were unsuccessful in its attempts to sell it and the Defendants had to engage in a further marketing campaign. That is a real detriment to the mortgagee and I reject Mr Brooke’s submission that there is no tangible benefit to the mortgagee in proceeding now to a sale of the property. They have buyers who appear ready to proceed and without a sale of the property they cannot recoup any of their capital or their accrued interest.”