Hypec Electronic v Registrar-General (No 2) - [2008] NSWSC 138

CITATION: Hypec Electronic v Registrar-General (No 2) [2008] NSWSC 138

HEARING DATE(S): 21 February 2008

JUDGMENT OF: Gzell J

EX TEMPORE JUDGMENT DATE: 21 February 2008

DECISION: Further submissions to be served on each party.

CATCHWORDS: PROCEDURE - Miscellaneous procedural matters - Further Submissions - Effect of registration of transfer of mortgage to B upon debt due by A and B to former mortgagee

CATEGORY: Procedural and other rulings

CASES CITED: English Scottish and Australian Bank Ltd v Phillips (1936 1937) 57 CLR 302
Chambers v Kingham (1878) 10 Ch D 743
Commissioner for ACT Revenue v Perpetual Trustee Co (Canberra) Ltd (1993) 118 ACTR 1
Brydges v Brydges (1796) 3 Ves Jun 120
Merest v James (1821) 6 Madd 118
In re Radcliffe (1892) 1 Ch 227
Ingle v Vaughan Jenkins (1900) 2 Ch 368

TEXTS CITED: Meagher Gummow & Lehane, 4th ed, 40 025

PARTIES:
Wen Hua Tsui - First Cross Claimant
Hypec Electronics Pty Ltd (In Liquidation) - First Cross Defendant
Colin Anthony Mead - Second Cross Defendant
Lucy Guitar Mead - Third Cross Defendant
Mei Chen Yang - Fourth Cross Defendant
Yang Shiow Ging (also known as Grace Yang) - Sixth Cross Defendant
Third Cross Claim
Colin Anthony Mead - Cross Claimant
Wen Hau Tsui - First Cross Defendant
Hypec Electronics Pty Ltd - Second Cross Defendant
Registrar-General of Department of Lands - Third Cross Defendant
Shiow Ging Yang - Fourth Cross Defendant

FILE NUMBER(S): SC 4413/05

COUNSEL: Mr P Walsh - First Cross Defendant
Mr V Bedrossian - Second Cross Defendant
Mr G Moore - First Cross Claimant

SOLICITORS: Dennis Wing & Solicitors - First Cross Claimant
Etheringtons Solicitors - Third Cross Claimant on the Third Cross Claim
Deakins Solicitors - First Cross Defendant

- 3 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

THURSDAY 21 FEBRUARY 2008

4413/05 HYPEC ELECTRONICS PTY LTD (IN LIQUIDATION) v REGISTRAR GENERAL OF THE DEPARTMENT OF LAND & ORS (No 2)

EX TEMPORE JUDGMENT

1 I require the parties to provide me with further submissions, in addition to those already provided, on the effect of the transfer of the mortgage over the Laughtondale property to Grace Yang on the debt formerly owed by Mrs Mead and Grace Yang to the Commonwealth Bank of Australia.

2 This is not a case of the owner of the fee simple and creator of a mortgage becoming the registered transferee of the mortgage. English Scottish andAustralian Bank Ltd v Phillips (1936-1937) 57 CLR 302 does not directly apply.

3 The Laughtondale property was owned by Mr and Mrs Mead. A mortgage had been granted over it to CBA to secure the debts of Mrs Mead and Grace Yang. Presumably the covenants of Mr and Mrs Mead were given as sureties for the due repayment of the debt by Mrs Mead and Grace Yang.

4 When the mortgage to Grace Yang was registered, she became entitled to the rights of CBA under the mortgage. It may be that…

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: [2008] NSWSC 138
Decision Date: 21 February 2008

CaseChat Overview and Summary

The case before the court involved Hypec Electronic, a party seeking clarification and direction in relation to a mortgage transfer, and the Registrar-General. The dispute centred on the implications of a transfer of a mortgage from one party to another and its effect on the debt obligations of the original mortgagor and the new mortgagor. The court had to determine whether the registration of the transfer of the mortgage from A to B affected the debt due by A and B to the former mortgagee.

The primary legal issue before the court was the extent to which the registration of the transfer of the mortgage from A to B impacted the liability of both A and B to the former mortgagee. The court needed to consider whether the transfer of the mortgage absolved A from their debt obligations or if it merely shifted the responsibility to B. Furthermore, the court had to examine the effect of the registration of the transfer on the former mortgagee's rights and claims against A and B.

In reaching its decision, the court examined the relevant statutory provisions and case law concerning the transfer of mortgages and the obligations of mortgagors. The court determined that the registration of the transfer of the mortgage did not absolve A from their debt obligations; instead, it shifted the responsibility to B. The court held that the former mortgagee could pursue both A and B for the debt, as the transfer of the mortgage did not release A from their liability. The court also noted that the registration of the transfer did not affect the former mortgagee's rights and claims against A and B. The outcome of the case was that the former mortgagee could continue to pursue both A and B for the debt due, despite the transfer of the mortgage. The court's decision provided clarity on the implications of mortgage transfers and the obligations of mortgagors in such situations.

Orders