Citibank Savings Ltd v Stergiou - [1996] FCA 459

REAL PROPERTY - mortgage - whether default in payment of interest on principal sum secured by mortgage registered under Real Property Act 1925 (ACT) - whether mortgagee's right to bring an action of ejectment arose upon the occurrence of default under the mortgage independently of any right in mortgagee to exercise a power of sale under Act.

Real Property Act 1925 ss 92, 93, 96(c)

City Mutual Life Assurance Society Ltd v Lance Creek Meat Works Pty Ltd [1976] VR 1
Long Leys Co Pty Ltd v Silkdale Pty Ltd (1991) 5 BPR 11,512
Wombat Nominees Pty Ltd v De Tullio (1990) 98 ALR 307

J Baalman, The Torrens System in New South Wales (2nd Ed)
W R Cole, The Law and Practice In Ejectment Under the Common Law Procedure Acts of 1852 and 1854
R H Coote, A Treatise on the Law of Mortgages
E A Francis, The Law and Practice Relating to Torrens Title in Australasia, Vol 1
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CITIBANK SAVINGS LIMITED v STANLEY STERGIOU and EKATERINE STERGIOU
ACT G34 OF 1995

BURCHETT, LEE, KIEFEL JJ
PERTH
13 JUNE 1996

IN THE FEDERAL COURT          )
OF AUSTRALIA                  )
AUSTRALIAN CAPITAL TERRITORY   )
DISTRICT REGISTRY             )
GENERAL DIVISION              )   NO. ACT G34 OF 1995

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

B E T W E E N: CITIBANK SAVINGS LIMITED

Appellant

and

STANLEY STERGIOU and
EKATERINE STERGIOU

Respondents

MINUTE OF ORDER

THE COURT: BURCHETT, LEE, KIEFEL JJ

DATE OF ORDER: 13 JUNE 1996

WHERE MADE: PERTH

THE COURT ORDERS THAT:

The appeal be allowed.

The decision of the trial judge be set aside.

The matter be remitted to the trial judge for further determination in accordance with these reasons.

The respondents pay the appellant's costs of the appeal.

The costs of the trial be determined by the trial judge.

Leave be granted to each party to adduce further evidence in conformity with such directions as may be given by the trial judge.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT          )
OF AUSTRALIA                  )
AUSTRALIAN CAPITAL TERRITORY   )
DISTRICT REGISTRY             )
GENERAL DIVISION              )   NO. ACT G34 OF 1995

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

B E T W E E N: CITIBANK SAVINGS LIMITED

Appellant

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: [1996] FCA 459
Decision Date: 13 JUNE 1996

CaseChat Overview and Summary

Citibank Savings Limited, as the mortgagee, sought an order for the mortgagors, Stanley and Ekaterina Stergiou, to deliver up possession of the mortgaged property pursuant to section 96(c) of the Real Property Act 1925 (ACT). The Stergious had defaulted on their interest payments under the mortgage, leading Citibank to issue a notice of default under section 93 of the Act. The dispute centred on whether Citibank's right to bring an action for ejectment arose independently of its right to exercise a power of sale under the Act.

The court examined whether the default in payment of interest by the Stergious was a sufficient condition to trigger Citibank's right to bring an action for ejectment, as outlined in section 96(c) of the Act. The court held that the statutory provision grants the mortgagee the same rights to bring an action to recover possession of the mortgaged property as is available to a mortgagee under a common law mortgage. Specifically, section 96(c) provides a mortgagee with a right to bring an action in ejectment immediately upon the occurrence of a default, without the necessity of a prior notice or demand for possession. The court concluded that the trial judge erred in requiring Citibank to prove a continuing default for one month before serving the notice under section 93, as such a requirement was not necessary under the terms of section 96(c).

The court set aside the decision of the trial judge and remitted the matter for further determination, focusing on whether the Stergious were in default in the payment of interest at the time the ejectment proceeding was commenced. The court also noted that certain factual issues, such as the calculation of interest and the inclusion of certain debits, required further examination. The court granted leave to both parties to adduce further evidence to fully address these issues.

Orders