Connolly v Ryan

The parties to this appeal were the plaintiffs, Connolly and Hale, and the defendant, Ryan. The dispute concerned the right of the plaintiffs, as registered proprietors of land, to bring an action for possession against the defendant, who was alleged to be wrongfully refusing to deliver possession. The plaintiffs’ claim was dismissed in the Supreme Court of Western Australia on the ground that they had not obtained the consent of the mortgagee to commence the action, as required by section 117 of the *Transfer of Land Act 1893* (W.A.). The plaintiffs appealed this decision to the High Court of Australia.

The legal issues before the High Court were: first, the proper construction of sections 116 and 117 of the *Transfer of Land Act 1893* (W.A.), particularly the extent to which a mortgagor’s right to sue is restricted by the requirement of mortgagee consent; and second, the onus of proof regarding whether the mortgagee was empowered by section 116 to bring an action for possession, thereby necessitating the mortgagor’s consent under section 117.

The High Court held that the restriction imposed by section 117 on a mortgagor’s right to sue in their own name applies only to causes of action in respect of which the mortgagee is empowered to sue under section 116. The Court further determined that the onus of proving that the mortgagee could have brought the action under section 116 rested on the defendant. Since the mortgage was not produced in evidence, there was no proof as to whether the mortgage debt was payable on a fixed date or on demand, whether default had occurred, or whether any covenant had been breached. Consequently, it was not established that the mortgagee was entitled to immediate possession and thus empowered to sue under section 116, meaning the defence under section 117 failed.

The appeal was allowed, and the judgment of the Supreme Court of Western Australia was reversed. The High Court ordered judgment for the plaintiffs with costs, and the respondent was ordered to pay the costs of the appeal, with certain adjustments for additional costs occasioned by the transfer of the appeal to the Melbourne Registry.