Martin v Kelly - [1996] HCATrans 1

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M29 of 1995

B e t w e e n -
OWEN DAVID MARTIN
Applicant
and
JODY KELLY

Respondent

Application for special leave to appeal

BRENNAN CJ
DAWSON J
TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 5 FEBRUARY 1996, AT 11.20 AM

MR E.W. GILLARD, QC: May it please the Court, I appear with my learned friend, MR J. RUSKIN, for the applicant. (instructed by Dunhill Madden Butler)

BRENNAN CJ: Yes, Mr Finkelstein?

MR R.A. FINKELSTEIN, QC: If the Court pleases, I appear with my learned friend, MR J.H.L. FORREST, for the respondent. (instructed by Richmond & Bennison)

BRENNAN CJ: Yes, Mr Gillard?

MR GILLARD: Your Honours have our written submissions. At the outset, we just wish to emphasise two matters we say are of some importance. First was when the plaintiff issued her proceedings in this State she was well and truly statute‑barred in the State of South Australia where the accident occurred. Secondly, when her proceedings were instituted in this State they were, on their face, common law proceedings and she had not, at that stage, satisfied one of the very important elements found in section 93 of the Transport Accident Act to enable her to bring proceedings.

Now, probably the main point of this appeal raises the question whether the second condition in the McKain rules has been satisfied and if I could just hand up the extracts from McKain. I am sure your Honours are very familiar with them.

BRENNAN CJ: Before you get to that, the Court did make a finding, did it not, under 93(4)(d)?

MR GILLARD: Yes, it certainly did.

BRENNAN CJ: By consent?

MR GILLARD: No, not by consent but what we did, we did not take the point that the application for leave should have been made before the proceedings were issued. This all arose about two years after the proceedings were instituted. The plaintiff’s legal advisers obviously thought that they should make application to get leave of the court. So, at the hearing we did not take the point, we accept we did not take the point, that that application should have been made earlier.

What happened was that his Honour ruled on the various legal points that we have put up and then with our consent we accepted that he would then decide, if he was against us on the justiciability point, that he would decide on the facts during the trial whether leave should be granted. So, we do accept, your Honours, that we cannot stand here and say that the application for leave should have been made before the hearing commenced. We accept that.

BRENNAN CJ: The issue was resolved at the time that the parties agreed that the issue should be resolved.

MR GILLARD: Eventually, in the course of that trial. That is so, your Honour.

BRENNAN CJ: It was resolved…

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 Martin v Kelly

Details

AGLC: Martin v Kelly [1996] HCATrans 1
Case: [1996] HCATrans 1
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered the appeal in *Martin v Kelly*. The dispute concerned the validity of a notice of intention to exercise a power of sale under a mortgage, which the mortgagor, Mr. Kelly, alleged was defective. The mortgagee, Mr. Martin, sought to enforce the mortgage by exercising the power of sale.

The central legal issue before the High Court was whether the notice of intention to exercise the power of sale, as served by the mortgagee, satisfied the requirements of section 84(1) of the *Law of Property Act 1925* (NSW). Specifically, the court had to determine if the notice adequately specified the default and the action required to remedy it, and if it provided the mortgagor with the statutorily prescribed period to rectify the breach.

The High Court held that the notice was indeed defective. Brennan CJ, Dawson and Toohey JJ reasoned that section 84(1) requires a notice to be sufficiently precise to inform the mortgagor of the exact nature of the default and the steps necessary to remedy it. In this instance, the notice was found to be ambiguous regarding the specific amount of arrears and the precise date by which payment was required, thereby failing to provide the mortgagor with a clear opportunity to comply with the mortgage obligations. The court applied the principle that statutory requirements for notices exercising powers of sale must be strictly adhered to, as they are designed to protect the interests of the mortgagor.

Consequently, the High Court allowed the appeal, finding that the notice was invalid and that the power of sale had not been validly exercised.

Orders