Cass v Fisher - [2020] NSWSC 738

Supreme Court

New South Wales

Medium Neutral Citation: Cass v Fisher [2020] NSWSC 738
Hearing dates: 10 June 2020
Date of orders: 11 June 2020
Decision date: 11 June 2020
Jurisdiction: Common Law
Before: Fagan J
Decision:
1 Judgment for the plaintiff against the defendant in the sum of $69,289.49.
2 Costs reserved.

Catchwords:
MORTGAGES AND SECURITIES – duties, rights and remedies of mortgagee – repayment and possession – where obligation intended to be secured by mortgage not identified in the instrument – whether deed of loan enforceable – judgment for plaintiff for debt due under deed
CONTRACTS – whether deed and mortgage unjust for purposes of the Contracts Review Act 1980 (NSW) – no relief granted
Legislation Cited: Contracts Review Act 1980
Civil Liability Act 2005
Real Property Act 1900
Cases Cited: King Investments Solutions v Hussain [2005] NSWSC 1076
McLeod v McLeod [2019] NSWSC 804
Category: Principal judgment
Parties: Jennie Lee Cass (plaintiff)
Handley Gilbert Fisher (defendant)
Representation:
Counsel:
W Chan (plaintiff)
P Batley (defendant)
Solicitors:
Priest Legal (plaintiff)
Legal Aid Commission NSW (defendant)

File Number(s): 2019/117810
Publication restriction: No

Judgment [EX TEMPORE REVISED]

This is an action in debt and for possession of land. The plaintiff relies upon a deed of loan made on 11 January 2017 by which the defendant acknowledged a debt of $52,766 repayable no later than 30 June 2018 and bearing interest at 8% compounding monthly. No part of the principal or interest has been paid and the amount due at today’s date is alleged to be $69,289.49 inclusive of interest. The plaintiff claims that the debt is secured by a mortgage over residential property located in the settlement of Arakoon on Trial Bay.
The defendant is the registered proprietor of the Arakoon property and there is clear evidence that he signed a mortgage on 11 January 2017. This was intended by the parties to be registered as a second mortgage behind an existing first mortgage in favour of St George Bank. By 6 March 2017 the plaintiff’s solicitor had secured the consent of the Bank to registration of the subject mortgage behind the Bank’s own encumbrance. On that date the plaintiff’s solicitor sent the document to his agent in Sydney for registration. He was advised on 14 March 2017 that registration had been effected.
The registered second mortgage is in evidence. The standard mortgage proforma on which the document has been drawn contains the following words:

[The mortgagor] mortgages to the mortgagee all the mortgagor’s estate and interest in the above land, and covenants with the mortgagee that the provisions set out in the annexure and/or memorandum specified below are incorporated in this mortgage:
annexure hereto;
memorandum filed pursuant to s 80A Real Property Act 1900.

The plaintiff’s solicitor caused the proforma mortgage to be completed by having typed into the blank space adjacent to the word “annexure” the words “not required”. He caused there to be typed into the blank space next to the word “memorandum” the identifier “No. Q860000”.…

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.

Continue reading Cass v Fisher

Details

AGLC: Cass v Fisher [2020] NSWSC 738
Case: [2020] NSWSC 738
Decision Date: 11 June 2020

CaseChat Overview and Summary

The matter of Cass v Fisher involved the plaintiff, Cass, who sought a judgment against the defendant, Fisher, for a debt due under a deed of loan. The dispute arose due to a mortgage that was intended to secure the obligation but was not explicitly identified in the mortgage instrument. The case was heard in the Supreme Court of New South Wales. The central legal issue was whether the deed of loan was enforceable despite the absence of the obligation in the mortgage instrument. Additionally, the court had to determine if the deed and the mortgage were unjust under the Contracts Review Act 1980 (NSW), which could potentially render them void.

The court examined the nature of the mortgage and the deed, finding that the intention to secure the debt was evident despite the omission in the mortgage instrument. It was determined that the omission did not affect the enforceability of the deed of loan. The court also assessed the deed and mortgage under the Contracts Review Act 1980 (NSW) but concluded that there were no grounds for finding them unjust. Therefore, the deed remained valid, and the mortgage effectively secured the debt as intended.

In its judgment, the court ruled in favour of the plaintiff, granting a judgment for the debt due under the deed of loan. The court found that the omission of the obligation in the mortgage instrument did not invalidate the deed or the mortgage's purpose. Consequently, the plaintiff was entitled to recover the amount due under the terms of the deed of loan. The court did not find the deed or the mortgage to be unjust under the Contracts Review Act 1980 (NSW), thus no relief was granted to the defendant on those grounds. The final orders were that the defendant pay the plaintiff the debt due under the deed of loan, with no further relief granted.

Orders