Ley v Scarff - [1981] HCA 5

HIGH COURT OF AUSTRALIA

Barwick C.J., Stephen, Mason, Murphy and Aickin JJ.

LEY v. SCARFF

(1981) 146 CLR 56

10 February 1981

Mortgage

Mortgage—Redemption—Power of mortgagor to require assignment in lieu of discharge—Whether power to require assignment to mortgagor or someone on his behalf—Conveyancing Act, 1919 (N.S.W.), ss. 93, 94.

Decisions

1981, February 10.
The following written judgments were delivered: -
BARWICK C.J. The appellant, Rex Ley, conducted in person his appeal to this Court from the decision of the Supreme Court of New South Wales, Court of Appeal Division, dismissing his appeal to that Court from a judgment of the Equity Division of that Court (Waddell J.) in a suit brought by the appellant against Claude Francis O'Hagan and Rona Mary O'Hagan (the O'Hagans), Frank McCarthy and Winifred Joan Scarff. (at p57)

2. The appellant in this suit sought an order that the O'Hagans assign to him the first mortgage held by them over land in the western suburbs of Sydney on which is erected a residence known as No. 2 Toothill Street, Lewisham, and to deliver up to the appellant the certificate of title to that land. The basis of the appellant's claim to this order was, as he claimed, an agreement between Mr. McCarthy, as solicitor for the O'Hagans, and the appellant to assign that mortgage to him. The appellant claimed he had paid the agreed consideration for this assignment and that the amount paid represented the balance due to the O'Hagans under that mortgage. The primary judge found that such an agreement was conditional upon there being no legal objection to the assignment and that there was such a legal impediment: and the Court of Appeal held that, in any event, any such agreement had been mutually abandoned. (at p57)

3. To understand the appellant's submission that both primary judge and Court of Appeal were in error, it is necessary to state the basic facts as they appear to me to have emerged in the proceedings in the Supreme Court. (at p57)

4. To begin with, the appellant's wife, Neva Jean Ley, was the registered proprietor of the land at Lewisham. She and the appellant resided in the house as their matrimonial home. In July 1961, Mrs. Ley mortgaged that property to the O'Hagans to secure the sum of $7,500 lent to Rex Ley Pty. Ltd. ("the company") by the mortgagees. Subsequently, in April 1962, Mrs. Ley executed a second mortgage to R. de W. Kennedy Finance Ltd. ("Kennedy") to secure the sum of $5,000. Both sums were also secured by mortgage over lands of the company. I am prepared to assume for present purposes that this second mortgage, as well as the first mortgage, was given as a security for a debt owed by the company. Thus, it may be taken for present purposes that Mrs. Ley was a surety for the company's debt at least to the extent of the amount secured by the first and second mortgages. The appellant was not a party…

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 Ley v Scarff

Details

AGLC: Ley v Scarff [1981] HCA 5
Case: [1981] HCA 5
Decision Date: 10 February 1981

CaseChat Overview and Summary

The High Court of Australia considered an appeal concerning a dispute between Ley and Scarff. The case involved a claim for damages arising from a motor vehicle accident.

The central legal issue before the High Court was whether the appellant, Ley, had established a breach of duty of care owed by the respondent, Scarff, in the operation of his vehicle, and if so, whether that breach caused the appellant's injuries. The court also had to consider the principles of contributory negligence, if any, on the part of the appellant.

The High Court analysed the evidence presented regarding the circumstances of the collision, applying established principles of negligence. The court examined the standard of care expected of a reasonable driver and assessed whether Scarff's actions fell below that standard. Furthermore, the court considered the causal link between any proven breach and the appellant's loss, as well as the appellant's own conduct in contributing to the accident. The court ultimately found that the respondent had not breached his duty of care to the appellant.

Orders