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McLeod v McLeod

McLeod v McLeod

Case [2019] NSWSC 804 5 July 2019

Mortgages & Security Interests

Contract Formation

Adequacy of Consideration

Unconscionable Conduct

Property Law

Contract Law

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Supreme Court

New South Wales

Medium Neutral Citation: McLeod v McLeod [2019] NSWSC 804
Hearing dates: 19-21 June 2019
Date of orders: 05 July 2019
Decision date: 05 July 2019
Jurisdiction: Common Law
Before: Fagan J
Decision:
Leave granted to issue writ of execution - judgment for the plaintiff

Catchwords:
MORTGAGES AND SECURITIES — mortgages — duties, rights and remedies of mortgagee —repayment – possession – whether mortgage sufficiently specifies mortgagee’s interest in the land –mortgage adequately specified interest – consideration given for promise to repay loan earlier advanced – plaintiff entitled to possession of land – leave granted to issue writ of execution
CONTRACTS — formation — consideration — adequacy of consideration – whether contract unjust for purposes of s 9(1) of the Contracts Review Act – whether representations gave rise to promissory estoppel – defendant not induced by representations or conduct and suffered no detriment by reliance – no relief granted – litigated with exhaustive attention to wide range of factual and legal questions – view formed on sufficient issues to permit disposition – wasteful of court resources for further analysis of plaintiff’s alternative case
Legislation Cited: Contracts Review Act 1980 (NSW)
Conveyancing Act 1919 (NSW)
Real Property Act 1900 (NSW)
Cases Cited: Chandra v Perpetual Trustees Victoria Ltd [2007] NSWSC 694
Chaudhary v Chaudhary [2017] NSWCA 222
Egan v Egan [2018] NSWSC 202
Perpetual Trustee Company Ltd v Khoshaba [2006] NSWCA 41
Perpetual Trustees Victoria Limited v English [2010] NSWCA 32
Provident Capital Ltd v Printy [2008] NSWCA 131
PT Garuda Indonesia Ltd v Grellman (1992) 35 FCR 515
PT Limited v Maradona Pty Limited (1992) 25 NSWLR 643
Sabah Yazgi v Permanent Custodians Limited [2007] NSWCA 240
Small v Tomassetti [2001] NSWSC 1112
Wigan v Edwards (1973) 1 ALR 497
Category: Principal judgment
Parties: Janet McLeod (plaintiff)
James McLeod (defendant)
Representation:
Counsel:
C Moschoudis (plaintiff)
S Kaur-Baines with SJ Hallahan (defendant)
Solicitors:
Bateman Battersby Lawyers (plaintiff)
McCabe Curwood (defendant)

File Number(s): 2017/305795
Publication restriction: No

Judgment

The plaintiff in this case claims judgment for possession of a house and land at Warrimoo on the eastern slopes of the Blue Mountains (“the land”). The land is owned and occupied by the defendant, the plaintiff’s son. The plaintiff holds a registered mortgage over the land, securing principal of $200,000 and interest. It is alleged that default in payment of interest has resulted in accrued arrears of slightly under $60,000. By reason of this default the principal is said to have fallen due. The plaintiff claims a money judgment for the principal and unpaid interest in the total sum of $259,625 calculated up to the date on which an amended statement of claim was filed (15 January 2019).

Outline of the events and issues

Between January 2003 and May 2004 the plaintiff made numerous payments for the benefit of the defendant, which she says were by way of loan. The payments included the stamp duty, deposit and part of the purchase price of the land, which was a vacant…

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 McLeod v McLeod

Details

AGLC: McLeod v McLeod [2019] NSWSC 804
Case: [2019] NSWSC 804
Decision Date: 05 July 2019

CaseChat Overview and Summary

The case of McLeod v McLeod involved a dispute between the plaintiff and the defendant over a mortgage agreement and the repayment of a loan. The plaintiff claimed that the mortgage sufficiently specified their interest in the land and sought possession of the land. The defendant argued that the mortgage did not adequately specify the mortgagee's interest and resisted the plaintiff's claim. The court was required to determine whether the mortgage was sufficiently specified, whether there was adequate consideration for the promise to repay the loan earlier, and whether the contract was unjust under s 9(1) of the Contracts Review Act. The court also needed to consider whether the defendant was induced by representations or conduct that gave rise to promissory estoppel.

The court found that the mortgage was adequately specified and the plaintiff was entitled to possession of the land. The court held that there was consideration given for the promise to repay the loan earlier advanced. The court further found that the contract was not unjust under s 9(1) of the Contracts Review Act as the defendant was not induced by representations or conduct and suffered no detriment by reliance. The court also found that there was no promissory estoppel as the defendant was not induced by any representations or conduct.

As a result, the plaintiff was granted leave to issue a writ of execution for possession of the land. The court found that it was not necessary to further analyse the plaintiff's alternative case as it would be wasteful of court resources. The court found that there were sufficient issues to permit disposition of the case without further analysis.

The final orders of the court were that the plaintiff was entitled to possession of the land and that leave was granted to issue a writ of execution. The court also found that there was no relief granted in respect of the plaintiff's alternative case as it was not necessary to further analyse the issues.

Orders