KEYSTART LOANS LTD -v- HAYDON-WOOD & ANOR [2005] WASC 231

Link to Appeal :

[2006] WASCA 23

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 231
Case No:	CIV:2570/2001	Heard:	24 AUGUST 2005
Coram:	HASLUCK J	Delivered:	27/10/05
No of pages:	22	Judgment Part:	1 of 1
Result:	Judgment for the plaintiff
Category:	B
PDF Version

Parties:	KEYSTART LOANS LTD NOEL EDWARD HAYDON-WOOD LINDA HAYDON-WOOD
Catchwords:	Property law Mortgage Default in payment of monthly instalments Whether repayment arrangements affected by alleged collateral contract Turns on own facts
Legislation:	Nil
Case References:	Hoyt's Pty Ltd v Spencer (1919) 27 CLR 133 Legione v Hateley (1983) 152 CLR 406 Stern v McArthur (1988) 165 CLR 489 Tobin v Dodd [2004] WASCA 288 Commissioner of Stamp Duties (NSW) v Bone [1977] AC 511 Ogilvie v Adams [1981] VR 1041

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : KEYSTART LOANS LTD -v- HAYDON-WOOD & ANOR [2005] WASC 231 CORAM : HASLUCK J HEARD : 24 AUGUST 2005 DELIVERED : 27 OCTOBER 2005 FILE NO/S : CIV 2570 of 2001 BETWEEN : KEYSTART LOANS LTD

Plaintiff

AND

NOEL EDWARD HAYDON-WOOD

LINDA HAYDON-WOOD

Defendants

Catchwords:

Property law - Mortgage - Default in payment of monthly instalments - Whether repayment arrangements affected by alleged collateral contract - Turns on own facts

Legislation:

Nil

Result:

Judgment for the plaintiff

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : Mr G M Abbott

Defendants : No appearance

Defendants : In person

Solicitors:

Plaintiff : Anderson Kershaw

Defendants : No appearance

Defendants : In person

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

Hoyt's Pty Ltd v Spencer (1919) 27 CLR 133
Legione v Hateley (1983) 152 CLR 406
Stern v McArthur (1988) 165 CLR 489
Tobin v Dodd [2004] WASCA 288

Case(s) also cited:

Commissioner of Stamp Duties (NSW) v Bone [1977] AC 511
Ogilvie v Adams [1981] VR 1041

(Page 3)

HASLUCK J

Introduction

1 The plaintiff, Keystart Loans Ltd, claims to be entitled to recover possession of a mortgaged property and the debit balance of a loan advanced to the defendants. The loan was to be advanced progressively to enable a residence to be constructed on the defendants' property at 19 Princeton Circle, Alexander Heights. The advances were secured by mortgage H222193 which was registered at the Department of Land Administration ("DOLA") on 13 September 1999.

2 The plaintiff contends that construction of the house on the subject property was completed towards the end of the year 2000 and the defendants took possession of the premises. On the plaintiff's case, this meant that the defendants became liable to pay the full monthly instalments provided for by the loan arrangements but they failed to do so. The plaintiff issued a notice of default dated 16 July 2001 in respect of the failure to pay an instalment due on 1 July 2001 of $861.21. This was not complied with and the plaintiff proceeded to issue a notice to vacate dated 21 August 2001. The plaintiff advised the…

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: [2005] WASC 231
Decision Date

CaseChat Overview and Summary

Keystart Loans Ltd sued Noel Edward Haydon-Wood and Linda Haydon-Wood for possession of a mortgaged property and recovery of the outstanding loan balance. The property was intended to be used as a residence and the loan was to be advanced progressively to enable construction of the house. The loan was secured by a mortgage registered on 13 September 1999. The plaintiff alleged that construction of the house was completed towards the end of 2000 and the defendants took possession of the premises. The plaintiff contended that the defendants became liable to pay the full monthly instalments provided for by the loan arrangements but they failed to do so. The defendants pleaded that an oral agreement was reached with the plaintiff that the repayments could be deferred until the completion of construction of a house on the property and with subsequent variations to the commencement date of payments. The court found that the loan contract and the mortgage allowed the plaintiff to determine by advice to the defendants when the obligation to repay the principal debt by making full instalment payments would commence. The fixing of a commencement date was left open by the documents and it was therefore to the plaintiff to fix a date by reference to completion of the building work. The evidence of Mr Munro and Ms Brownlie established that payment of the full instalments was not required until the loan was fully funded or the house completed in the sense of being practically complete and occupied. The court found that a verbal contract of this kind could be characterised as a contract collateral to the main contract. The court found that no payment was made by the defendants in response to the demand or subsequent notice of default prior to the commencement of proceedings. The court found that the plaintiff had substantiated its claim for relief and was entitled to possession of the subject premises and payment of the principal debt. The amount due was $162,348.95 as at 23 August 2005 with interest at the daily rate of $27.59 thereafter.

Orders