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

This matter concerned an application for special leave to appeal to the High Court of Australia. The applicants, ACP Properties (Townsville) Pty Ltd, ACP Properties (Qld) Pty Ltd, and Stephen George Campbell, sought leave to appeal a decision of the Queensland Court of Appeal. The respondents were 11 Oonoonba Road Pty Ltd and another party. The core of the dispute revolved around the distribution of proceeds from a sale of property subject to multiple mortgages, and specifically, the operation of section 88 of the *Property Law Act 1974* (Qld) and the imputation of waiver.

The legal issues before the High Court were twofold. Firstly, whether the Court of Appeal had erred in its interpretation of section 88 of the *Property Law Act 1974* (Qld), particularly concerning its application to a second mortgage that had been registered unlawfully. The applicants argued that section 88 was a machinery provision that regulated priorities but did not create new substantive rights, and that the Court of Appeal had incorrectly elevated its operation to impose an obligation on a lawfully registered mortgagee. Secondly, the applicants contended that the Court of Appeal had erred in imputing waiver to a party based on what the court considered should have happened, rather than on unequivocal conduct objectively demonstrating an intention to abandon a right.

The High Court refused special leave to appeal, finding that the proposed appeal would have insufficient prospects of success. While the applicants argued that the Court of Appeal’s interpretation of section 88 was flawed by suggesting it imposed an obligation on mortgagees and by considering the lawfulness of registration when determining priorities, the High Court did not grant leave to explore this. Similarly, the applicants' argument that waiver should not be imputed based on hypothetical conduct, but rather on clear and unequivocal actions, was also not considered to warrant an appeal. The court implicitly accepted the Court of Appeal's reasoning on both the statutory interpretation and the waiver points.