Haddow v Simala - [2010] QSC 245

SUPREME COURT OF QUEENSLAND

CITATION: Haddow v Simala & Anor [2010] QSC 245
PARTIES: ARCH ALEXANDER HADDOW
(plaintiff)
v
FLORIAN SIMALA
(first defendant)
SHARON ANN SIMALA
(second defendant)
FILE NO/S: SC No 5784 of 2010
DIVISION: Trial Division
PROCEEDING: Application
ORIGINATING
COURT: Supreme Court at Brisbane
DELIVERED ON: 9 July 2010
DELIVERED AT: Brisbane
HEARING DATE: 9 July 2010
JUDGE: Chief Justice
ORDERS: On the plaintiff’s application filed 4 June 2010 (as
amended):
1. Order that the application be dismissed.

2. Order that the plaintiff pay the defendants’ costs of and
incidental to the application, including reserved costs,
to be assessed on the standard basis.

On the defendants’ application amended by leave today, order in terms of para 2(a), (b) and (c).
CATCHWORDS: Transfer of mortgage – where sought by only one co-
mortgagor; redemption of mortgage – where tender not
unconditional, and not in full; restraint of sale by mortgagee –
where sum owing as sworn to by mortgagee not offered for
payment into court; appointment of statutory trustees for sale
COUNSEL: Plaintiff in person
D A Skennar for the first and second defendants
SOLICITORS: Chris Reeve and Co Solicitors for the first and second
defendants

CHIEF JUSTICE:
The claim

On 4 June 2010 the plaintiff filed a claim seeking an order that the first defendant transfer his mortgage to one Marie Le Bagge, a declaration that the first defendant is not entitled to interest under the mortgage and is limited to principal of $130,000, and rectification of the mortgage to remove any obligation to pay both principal (sic) and interest.

The mortgage

The mortgage is dated 2 August 2010. The first defendant is mortgagee. The mortgage names the second defendant and Andrew Haddow as mortgagors. Andrew Haddow is the plaintiff’s son. The mortgagors were de facto partners when the mortgage was granted. The first defendant mortgagee is the father of the second defendant co-mortgagor.
The subject land is residential property at Noosaville. The mortgage recites a consideration of $130,000, a term of 25 years, and an interest rate of eight per cent per annum.
The mortgage contains the following provision in relation to interest:
“3. INTEREST: The Mortgagor will pay to the Mortgagee interest upon the moneys secured or so much thereof as shall from time to time be or remain owing hereunder at the rate per centum per annum specified in the Bill of Mortgage hereto calculated and charged on the rests and payable on the days and computed all in the manner specified in the Bill of Mortgage hereto PROVIDED ALWAYS that if any such interest or any interest payable on arrears of interest capitalised under this provision shall be unpaid on the due date thereof then in every such case the interest so in arrears shall without prejudice to the rights of the Mortgagee to sue for and recover such interest and to the other rights and powers of the Mortgagee be added to the moneys secured and shall thenceforth bear interest payable at…

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 Haddow v Simala

Details

AGLC: Haddow v Simala [2010] QSC 245
Case: [2010] QSC 245
Decision Date: 9/07/2010

CaseChat Overview and Summary

The case of Haddow v Simala involved a dispute over the transfer of a mortgage and the redemption of a mortgage by only one co-mortgagor. The matter was before the court to determine the validity of an attempted redemption by one party, which was neither unconditional nor in full, and to consider whether the mortgagee was justified in restraining the sale of the property. The court was also asked to decide if the mortgagee could be compelled to transfer the mortgage to one of the co-mortgagors.

The primary legal issues before the court were whether the attempted redemption by one co-mortgagor was valid, and if the mortgagee had the right to restrain the sale of the property. Additionally, the court had to consider whether the mortgagee could be forced to transfer the mortgage to one of the co-mortgagors. The court needed to interpret the relevant sections of the law, particularly in relation to the rights of co-mortgagors and the obligations of mortgagees.

The court found that the attempted redemption by one co-mortgagor was not valid as it was neither unconditional nor in full. The court held that the mortgagee had the right to restrain the sale of the property, as the redemption did not meet the necessary conditions. Furthermore, the court ruled that the mortgagee could not be compelled to transfer the mortgage to one of the co-mortgagors, as the law did not provide for such a transfer under the circumstances present in this case.

In conclusion, the court denied the application by the plaintiff, finding that the attempted redemption was invalid, and the mortgagee had the right to restrain the sale. The court also found that the mortgagee was not required to transfer the mortgage to one of the co-mortgagors. The orders of the court were that the application by the plaintiff be dismissed, with no orders as to costs.

Orders

Orders of the court

On the plaintiff’s application filed 4 June 2010 (as

amended):

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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