Baron v Upton - [2000] TASSC 20

[2000] TASSC 20

CITATION: Baron v Upton [2000] TASSC 20

PARTIES:  BARON, Thomas Peter
  v
  UPTON, Richard Austin

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  Original
FILE NO/S:  M140/1999
DELIVERED ON:  22 March 2000
DELIVERED AT:  Hobart
HEARING DATES:  14, 16 March 2000
JUDGMENT OF:  The Master

CATCHWORDS:

Deeds - Mortgage - Alteration after execution - Whether mortgage invalidated.
Pigot's Case (1614) 11 Co Rep 26 b; 77 ER 1177, considered.
Armor Coatings (Marketing) Pty Ltd v General Credits (Finance) Pty Ltd (1978) 17 SASR 259; Farrow Mortgage Services v Slade & Nelson (1995 - 1996) 38 NSWLR 636; Morton v Black (1986) 4 BPR 9164, applied.
Aust Dig Deeds [23]

REPRESENTATION:

Counsel:
             Applicant:  A J Abbott
             Respondent:  R M Webster
Solicitors:
             Appellant:  Butler McIntyre & Butler
             Respondent:  C A Johnston Munnings & Co

Judgment Number: [2000] TASSC 20
Number of Paragraphs: 14

Serial No 20/2000
File No M140/1999

THOMAS PETER BARON v RICHARD AUSTIN UPTON

REASONS FOR JUDGMENT THE MASTER

22 March 2000

The applicant mortgagee has applied for an order that the respondent mortgagor give possession to him of registered land described in the Folio of the Register Vol45069, Folio 3 ("the land") pursuant to the Land Titles Act 1980, s146 ("the Act").

Section 146 provides in its relevant part:

"146 ¾ (1) Where … default is made in the payment of any money secured by a mortgage … for the time specified by this Act or in the mortgage … ¾
(a)a mortgagee as against a mortgagor …

may without any formal demand or re-entry apply to the Supreme Court for an order for possession of the premises in respect of which the default is made.
(2) On application being made under subsection (1), the Supreme Court may issue a summons directed to a mortgagor … referred to in that subsection, calling on him on a day and at a place to be named in the summons, to show cause why the Supreme Court should not order possession … .
(3) Service of an order referred to in subsection (1) stands in lieu of ¾
…
(b)in the case of a mortgagee … against a mortgagor …, the notice required to be given in such a case by this Act.

(4) If the person entitled to redeem the land referred to in subsection (1), or liable for the payment of money under a mortgage … referred to in that subsection, before the return day of a summons referred to in subsection (2), pays the money due under the mortgage … and the costs of the summons, the summons shall be discharged.
(5) If a person referred to in subsection (4) does not make the payment referred to in that subsection and does not at the time specified in the summons referred to in that subsection show good cause why the premises should not be recovered, then on proof of ¾
(a)the service of the summons, if the mortgagor … does…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] TASSC 20
Decision Date: 22 March 2000

CaseChat Overview and Summary

The Supreme Court of Tasmania was presented with a case where Thomas Peter Baron, the mortgagee, sought an order for possession of registered land against Richard Austin Upton, the mortgagor, following a default in payment. The dispute centred around the validity of a mortgage document that had been materially altered after its execution. The court was tasked with deciding whether the alteration rendered the mortgage invalid and, if not, whether the mortgagee was entitled to an order for possession.

The court considered the legal principle established in Pigot's Case, which stated that any material alteration to a deed by a party in possession of it, without the consent of the other party, would invalidate the deed. However, this rule was subject to the condition that the alteration must be material. In modern interpretations, the rule was confined to alterations that were material, and even immaterial alterations could not invalidate a deed if made with the authority of the party in possession. The court also noted that the rule did not apply to registered documents, as the register was the authoritative record of rights and obligations.

In this case, the alteration to the mortgage document, which increased the principal sum from $100,000 to $130,000, was found to be immaterial. The court held that the rights and obligations of the parties were determined by the terms of the Act and the register. Since the mortgage was registered, the original document was not the sole source of truth, and the alteration did not affect the validity of the mortgage. The court also noted that the respondent had not demonstrated any good cause to prevent the recovery of the mortgaged premises.

The court concluded that the mortgagee was entitled to an order for possession as the respondent had defaulted in payment and had not shown any reason why the premises should not be recovered. The court ordered that possession of the land be given to the mortgagee unless the respondent paid all money due under the mortgage by a specified date.

Orders