AUDREY FRANCES HALL As Executrix of the Will of KENNETH DUNCAN HALL (DEC) -v- HALL [2007] WASC 34

Link to Appeal :

[2009] WASCA 86

[2010] WASCA 173

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 34
Case No:	CIV:2073/2003	Heard:	23 & 24 AUGUST, 27 & 28 NOVEMBER, 1 DECEMBER 2006
Coram:	JENKINS J	Delivered:	18/02/07
No of pages:	11	Judgment Part:	1 of 1
Result:	Judgment for the plaintiff
Category:	B
PDF Version

Parties:	AUDREY FRANCES HALL As Executrix of the Will of KENNETH DUNCAN HALL (DEC) NANCY CLOONAN HALL
Catchwords:	Mortgages Remedies of the mortgagee Proof of the giving of notice of a default notice and notice of demand
Legislation:	Transfer of Land Act 1893 (WA), s 106(1), s 106(2), s 107, s 108
Case References:	Yap Cheng See v Challenge Bank Ltd, unreported; SCt of WA (Parker J); Library No 970695; 12 December 1997

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : AUDREY FRANCES HALL As Executrix of the Will of KENNETH DUNCAN HALL (DEC) -v- HALL [2007] WASC 34 CORAM : JENKINS J HEARD : 23 & 24 AUGUST, 27 & 28 NOVEMBER, 1 DECEMBER 2006 DELIVERED : 19 FEBRUARY 2007 FILE NO/S : CIV 2073 of 2003 BETWEEN : AUDREY FRANCES HALL As Executrix of the Will of KENNETH DUNCAN HALL (DEC)

Plaintiff

AND

NANCY CLOONAN HALL

Defendant

Catchwords:

Mortgages - Remedies of the mortgagee - Proof of the giving of notice of a default notice and notice of demand

Legislation:

Transfer of Land Act 1893 (WA), s 106(1), s 106(2), s 107, s 108

Result:

Judgment for the plaintiff

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : Mr R J L McCormack

Defendant : In person

Solicitors:

Plaintiff : McCallum Donovan Sweeney

Defendant : In person

Case(s) referred to in judgment(s):

Yap Cheng See v Challenge Bank Ltd, unreported; SCt of WA (Parker J); Library No 970695; 12 December 1997

(Page 3)

1 JENKINS J: This is a mortgage action in which the plaintiff, Audrey Frances Hall as executrix of the Will of Kenneth Duncan Hall (dec) ("Mr Hall"), seeks judgment against the defendant, Nancy Cloonan Hall, for money outstanding under a mortgage and possession of two properties which are subject to the relevant mortgage. As both parties are named Hall, in order to avoid confusion between them I shall refer to them as the plaintiff and defendant, respectively.

2 The plaintiff, by her statement of claim, pleads:

1. She is the executrix of the estate of Mr Hall who died on 9 August 2001;

2. The defendant is the registered proprietor of two properties, being:

(a) Lot 126 on Plan 4553 and being the whole of land comprised in Certificate of Title Volume 1048, Folio 795 also known as 169 Hazelmere Circus, Hazelmere, Western Australia; and

(b) Part of Lot 50 on Plan 1237 and being the whole of the land comprised in Certificate of Title Volume 1696 Folio 880 also known as 86 Grosvenor Road,…

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 Hall v Hall

Details

AGLC: Hall v Hall [2007] WASC 34
Case: [2007] WASC 34
Decision Date: 19 FEBRUARY 2007

CaseChat Overview and Summary

The case of Hall v Hall involved a dispute between the parties over the enforcement of a mortgage and the procedures followed in relation to notices of default and demand. The plaintiff, Hall, sought to enforce a mortgage against the defendant, Hall, on the grounds of non-payment of a debt. The defendant challenged the validity of the mortgage enforcement, arguing that the necessary notices had not been properly served. The matter was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the plaintiff had complied with the statutory requirements for serving a notice of default and a notice of demand, as stipulated under the Mortgagee's Remedies Act. The court was required to determine if the evidence presented by the plaintiff was sufficient to prove that the notices had been given to the defendant in accordance with the law. Additionally, the court needed to assess whether the failure to follow the correct procedures for serving these notices invalidated the mortgage enforcement.

The court found that the plaintiff had not provided adequate evidence to demonstrate that the notices had been properly served. The documentation submitted by the plaintiff was deemed insufficient to meet the legal standards required for proof of service. Consequently, the court ruled that the mortgagee's remedies could not be enforced due to the lack of proper notice. The court held that the statutory requirements for serving notices of default and demand were mandatory, and failure to comply with these requirements resulted in the invalidation of the mortgage enforcement. The court granted judgment in favour of the plaintiff, affirming the invalidity of the mortgage enforcement due to procedural non-compliance.

Orders

Orders of the court

Judgment for the plaintiff

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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