11 Oonoonba Road Pty Ltd & Anor v ACP Properties (Townsville) Pty Ltd & Ors

The appeal before the court involved Oonoonba Road Pty Ltd and another party (collectively referred to as the appellants) challenging a decision against them in a dispute with ACP Properties (Townsville) Pty Ltd and others (the respondents). The dispute centred around a mortgage on a property, the legality of its registration, the discharge of debts, and whether the sale of the property constituted a foreclosure. The case was originally heard in the trial court, which made orders in favour of the respondents, and was now being appealed by the appellants.

The legal issues that the court needed to address included whether the mortgage was registered unlawfully without the consent of the first appellant, whether the first respondent had acquiesced in the conduct of the second respondent, and whether the learned trial judge should have found that the debt was discharged by operation of section 88 of the Property Law Act 1974 (Qld). Additionally, the court had to consider whether the conveyance to the first respondent took effect as a foreclosure, thus releasing any obligation under the personal covenants in the registered mortgages under section 63(2) of the Land Title Act 1994 (Qld).

In its decision, the court found that the mortgage was registered without the consent of the first appellant, which was unlawful. Furthermore, the court agreed with the lower court's finding that the second respondent was not entitled to re-register its mortgage. The court concluded that the first respondent, as the assignee of the mortgage, had not acquiesced in the conduct of the second respondent. The court also found that the conveyance to the first respondent did not effect a foreclosure, and therefore, the personal covenants under the assigned mortgage were not released. The appeal was allowed, and the orders made on 4 March 2021 were set aside. The parties were given leave to make submissions on the final form of orders to reflect the court's reasons, and as to costs, within a specified timeframe.