Stella Eboh v James Baird
[2024] EWHC 318 (KB)
Calvin Jeremy Swaby v KHK One Limited
15 May 2024
[2024] EWHC 2056 (KB)
High Court
A borrower defaulted on a loan secured by two properties. The lender sold the properties at auction. The borrower tried to stop the sale, but the judge said the lender had the right to sell and the borrower could only get money for any losses, not the properties back.
Key Facts
- •KHK One Limited (Defendant) granted Calvin Jeremy Swaby (Claimant) a £590,000 loan secured by two properties.
- •The loan was unregulated and defaulted on 24 February 2024.
- •The Defendant auctioned the properties on 17 April 2024 after the Claimant failed to repay.
- •The Claimant obtained a without-notice injunction on 3 May 2024 to prevent completion of the sale.
- •The Defendant applied to set aside the injunction and strike out the Claimant's claim.
Legal Principles
Power of sale under section 101 of the Law of Property Act 1925.
Law of Property Act 1925
Effect of a clause granting lender discretion to institute proceedings before enforcement.
Loan Agreement Clause 9.3
Standard for setting aside an injunction; consideration of whether there is a serious issue to be tried.
Inherent jurisdiction of the court
Adequacy of damages as a remedy for injunctive relief.
Case law principles
Unregistered charge does not affect power of sale.
Swift 1st Limited v Colin and Others [2012] Ch 206
Outcomes
Injunction set aside.
No proper basis for the without-notice application; no serious issue to be tried; damages are an adequate remedy; the Defendant had the power of sale under the Law of Property Act 1925 and the loan agreement.
Claim struck out.
The Claimant's claim based on breach of the loan agreement is unarguable; other claims lack merit and no arguable case is disclosed.