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INT-LAW  September 2006, Week 5

INT-LAW September 2006, Week 5

Subject:

Re: Australian case needed

From:

Colin Fong <[log in to unmask]>

Reply-To:

International Law Librarians List (Int-Law)

Date:

Sun, 1 Oct 2006 11:56:24 +1000

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (64 lines)

Mary
 
The case can be found via LexisNexis Au, the content of which, is not always on LexisNexis. 
 
GO and MJT NOMINEES PTY LTD v PUBLIC TRUSTEE [1986] VR 137 SUPREME COURT OF VICTORIA GRAY J 15, 29 August 1985 Mortgage Early termination Interest Liability for interest for unexpired term Effect of Sale of Land Act 1962 (No. 6975), s8. S8 of the Sale of Land Act 1962 provides:-"(1) Where any land which is subject to a mortgage is or has been sub divided into separate allotments or parcels the mortgagor may require the mortgagee to apportion the mortgage moneys to the respective allotments or parcels of land which are subject to the mortgage...."(3) Where the mortgage moneys have been apportioned to the respective allotments or parcels pursuant to this section the mortgagee shall on tender of -(a) the amount apportioned to any particular allotment or parcel; or(b) a registrable instrument of mortgage to secure payment of all moneys apportioned to that allotment or parcel - execute and deliver to the mortgagor a discharge of the first mentioned mortgage in so far as it relates to that allotment or parcel."(4) A mortgage tendered under this section shall contain all such powers in favour of the mortgage and all such covenants on the part of the mortgagor as are usual in mortgages and shall fully accord with and provide for the observance of all obligations of the mortgagor pursuant to the mortgage to be discharged and shall be prepared and registered at the cost of the mortgagor. Held, that s8 does not confer upon a mortgagor a right to pay out a mortgage prior to the date fixed by the instrument where the instrument itself gives so such power. Upon early payment of the mortgage moneys, the mortgagor remains liable to pay interest for the unexpired portion of the term or otherwise in accordance with the terms of the instrument.Stansfield and Swiney v Housing Mortgage Corporation Ltd, [1964-5] NSWR 1259, distinguished. 


Trial of action 
G.O. and M.J.T. Nominees Pty. Ltd. sued the Public Trustee claiming moneys it had paid to the defendant under protest as penalty interest upon early termination of certain mortgages. The facts are stated in the judgment. J. v Kaufman, for the plaintiff. R. R. Boaden, for the defendant. Gray J.: The facts of this case are not in dispute.By an instrument dated 28 February 1983, the plaintiff gave a mortgage to the defendant over land at 5-7 Muir Street, Frankston ("the land") to secure a loan of $200,000 to it by the defendant. 
[1986] VR 137 at 138
The instrument provided that the plaintiff was to repay the principal sum on 28 February 1988 and was to pay interest at 16 per centum per annum by equal quarterly payments.Prior to the mortgage being given, the land had been subdivided into eight separate titles. I will refer to these as units 1-8.By letter dated 1 October 1984, the plaintiff's solicitors asked for an apportionment of the mortgage moneys to the eight units. On 10 October 1984, the defendant's solicitors agreed to an apportionment of the principal sum equally between the eight units. This procedure is justified by s8 of the Sale of Land Act 1962, to which I will refer later.At about the same time, the plaintiff entered into contracts for the sale of units 3, 6 7 and 8. On 12 November 1984, the plaintiff tendered to the defendant the mortgage moneys apportioned in respect of units 3, 6, 7 and 8 and interest to that date.The defendant refused to accept the amounts tendered and refused to execute a discharge of the mortgages in question. The defendant expressed its willingness to discharge the mortgages upon payment by the plaintiff of certain additional sums in the nature of penalty interest.On 16 November 1984, the plaintiff paid under protest the additional sums demanded by the defendant. The mortgages were then duly discharged.This exercise was repeated in respect of units 1, 2, 4 and 5, culminating in a payment under protest by the plaintiff on 14 March 1985. The total amount paid under protest was $8864.68.On 2 April 1985, the plaintiff issued the writ in this action. A claim is made for the return of the money paid under protest, but I am not asked to make such an order. What is sought is a declaration that in order to obtain a discharge of each mortgage, the plaintiff had only to pay interest up to the date of the repayment of the principal sum.Counsel for the parties agreed that the sole question is whether s8 of the mortgage prior to the date fixed by the instrument where the instrument itself gives no such power.The mortgage in this case is in standard form. The mortgage covenants to pay the principal sum on 28 February 1988. It was conceded by Mr. Kaufman, who appeared for the plaintiff, that neither common law nor equity give the plaintiff a right to make a premature payment of the principal sum: Hyde Management Services Pty. Ltd. v F.A.I. Insurances Ltd. (1979) 144 CLR 541.S93 of the New South Wales Conveyancing Act 1919 gives a mortgagor a right to redeem a mortgage before the time appointed, but only if he pays interest on the principal sum for the unexpired portion of the term. There is no corresponding provision in Victoria.But, it was said that s8 of the Sale of Land Act 1962 gives the mortgagor an unrestricted right to premature payment in circumstances such as the present.The relevant parts of s8 read as follows:-"(1) Where any land which is subject to a mortgage is or has been subdivided into separate allotments or parcels the mortgagor may require the mortgagee to apportion the mortgage moneys to the respective allotments or parcels of land which are subject to the mortgage.... 
[1986] VR 137 at 139
"(3) Where the mortgage moneys have been apportioned to the respective allotments or parcels pursuant to this section the mortgagee shall on tender of -(a) the amount apportioned to any particular allotment or parcel; or(b) a registrable instrument of mortgage to secure payment of all moneys apportioned to that allotment or parcel - execute and deliver to the mortgagor a discharge of the first mentioned mortgage in so far as it relates to that allotment or parcel."(4) A mortgage tendered under this section shall contain all such powers in favour of the mortgagee and all such covenants on the part of the mortgagor as are usual in mortgages and shall fully accord with and provide for the observance of all obligations of the mortgagor pursuant to the mortgage to be discharged and shall be prepared and registered at the cost of the mortgagor...."S2 defines "mortgage money" as money secured by the mortgage. This must include interest payments secured by the mortgage.S8(3) clearly provides a mortgagor with two alternatives. If he chooses (b), he may only obtain a discharge of the existing mortgage by tendering a new mortgage which provides the mortgagee with an identical security. If that course had been followed here, the new mortgage could not have contained any right in the mortgagor to pay out the mortgage prematurely.But, it was contended that if the option contained in s8(3)(a) is exercised, the mortgagor is entitled to a discharge by tendering the principal sum and interest to that date.If this contention is correct, it means that the position of the mortgagee is less advantageous if option (a) is exercised than it would be if option (b) is preferred. It means that a tender, perhaps without any prior notice, will rob the mortgagee of his entitlement to interest payments in relation to the unexpired term. It means that he would be denied a property right secured by the instrument.I would only be disposed to adopt the suggested construction of s8(3) if driven to by the clearest language. But, in my opinion, the section is perfectly open to a construction which does not produce such surprising consequences.The Sale of Land Act is, not surprisingly, concerned with the sale of land. It is not concerned with cutting down well established rights of mortgagees. S8 is clearly intended to deal with problems associated with the sale of subdivided land which is subject to a mortgage over the whole. Thus, the apportionment procedure is provided for in s8(1) and s8(2).S8(3) then provides the mortgagor-vendor with the two alternatives I have mentioned in order to complete a sale. In looking at option (a), I can see no language difficulty in treating the mortgagor's obligation as one of tendering the moneys secured by the mortgage, namely the principal sum and the interest in respect of the whole term.The only limitation on the mortgagee's rights which s8(3) produces is that he cannot insist upon withholding a discharge until the full term has expired. It seems to me that if the mortgagor tenders the principal sum and the interest over the whole term, s8(3) requires the mortgagee to execute a discharge. 
[1986] VR 137 at 140
A similar limitation is imposed by s136 of the Bankruptcy Act 1966, which allows the trustee to require a mortgagee to execute a discharge upon payment of the principal sum after six months' notice or interest in lieu of notice.It was said by Mr. Kaufman that, upon the construction contended for by the defendant, there is no need for s8(3)(a) because it merely restates the existing legal position. It may be that s8(3)(a) makes explicit what would otherwise be implicit, but it was probably felt that the parties' rights following an apportionment should be spelt out in express terms.Mr. Kaufman placed some reliance upon the judgment of Jacobs J. in Stansfield and Swiney v Housing Mortgage Corporation Ltd. [1964-5] NSWR 1259, where his Honour upheld the right of a mortgagor to redeem before the due date upon payment of interest to date of payment. But in that case the mortgage made provision for redemption before the due date and, in my opinion, the decision turned upon the rather peculiar provisions of the subject instrument, which are quite different from the present. 
Order 
For the reasons I have endeavoured to express, I consider that the defendant was legally justified in taking up the position that it did. There will be judgment for the defendant, with costs to be taxed.Judgment for the defendant. Solicitors for the plaintiff: Price and Chamberlain Brent and Stephens. Solicitors for the defendant: McKean and Park. MARC BEVAN-JOHN 
 
Colin Fong

________________________________

From: International Law Librarians List (Int-Law) on behalf of Saulig, Mary
Sent: Sat 30/09/2006 7:03 AM
To: [log in to unmask]
Subject: [Int-Law] Australian case needed


Can anyone help me get a copy case that is not available on Westlaw or Lexis?  The cite is: 
 
GO & MJT Nominees Pty Ltd v Public Trustee
[1986] VR 137
1986 WL 589816

 
I'd be happy to pay any costs.
 
Thanks in advance 
 
Mary Saulig
 
Mary Saulig 
Director, Library Services 
Goodmans LLP 
250 Yonge St., Suite 2400 
Toronto, ON Canada M5B 2M6 
Tel 416.597.4206 
Fax 416.979.1234 

 
 
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