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Moffett v Dillon

Moffett v Dillon

Case [1999] VSCA 32 30 March 1999

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SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted
No. 3939 of 1987

RUSSELL LINDSAY MOFFETT

Appellant

v
THELMA DOREEN DILLON, WESTPAC
BANKING CORPORATION AND REGISTRAR
OF TITLES

Respondents

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JUDGES: BROOKING, ORMISTON and BUCHANAN, JJ.A.
WHERE HELD: MELBOURNE
DATE OF HEARING: 8 February 1999
DATE OF JUDGMENT: 30 March 1999
MEDIA NEUTRAL CITATION: [1999] VSCA 32

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EQUITY - Priority - Equitable interests - Priority between prior equitable charge and subsequent unregistered mortgage - Maxim where equities equal first in time prevails - Whether prior equity postponed - Registrability of mortgage not relevant.
EQUITY - Priority - Notice - Whether notice to holder of subsequent equity fatal to
claim for priority.
EQUITABLE CHARGE - Securing "all moneys due and payable" by purchaser pursuant
to contract of sale of other land - Dishonoured promissory note taken as conditional
payment of deposit - Deposit secured by charge - Damages for breach of contract of sale
and costs also secured.

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APPEARANCES: Counsel Solicitors
For the Appellant Mr J. Santamaria, Q.C. and Russell Kennedy
Mr P. Marzella
For the 1st Respondent Mr P. Kistler Patrick W. Dwyer
For the 2nd Respondent Mr R. Berglund Dunhill Madden Butler

BROOKING, J.A.:

In 1985 Russell Moffett - the correct spelling of the surname is uncertain - was the registered proprietor of a house in Broadford. By contract of sale dated 24 September 1985 he sold it to Thelma Dillon for $175,000. If one ignores a mysterious "fee of $1,000" mentioned in the particulars of sale, concerning which there is no evidence and which has at all times escaped attention, the price of $175,000 was payable by a deposit of $15,000, to be paid on the date of the contract, with the residue to be paid on 24 September 1988. Vacant possession was to be given on acceptance of title and payment of the sum of $15,000. Interest was to be paid on the residue at 15% per annum with quarterly rests by weekly instalments of $500 commencing one week after the giving of possession. The general conditions made the conditions in Table A of the Transfer of Land Act 1958 applicable to the contract.
Dillon gave Moffett a promissory note dated 24 September 1985 whereby she promised to pay him or to his order at a specified branch of a bank $15,187.50 one month after the date of the note. As a matter of arithmetic, $187.50 represents interest on $15,000 at 15% per annum for one month. How the promissory note came to be given is dealt with very briefly in the evidence. We have only statements in affidavits by Moffett that on or about 24 September 1985 Dillon gave him the note "in or in lieu of payment of the deposit of $15,000 due under the contract".
Dillon evidently took possession of the land on or about 24 September 1985. The promissory note was dishonoured when it was presented for payment. The transaction, whereby possession of land and dwelling was given without payment to…

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 Moffett v Dillon

Details

AGLC: Moffett v Dillon [1999] VSCA 32
Case: [1999] VSCA 32
Decision Date: 30 March 1999

CaseChat Overview and Summary

In the matter of Moffett v Dillon, the court was presented with a dispute concerning the priority of equitable interests in relation to a mortgage. The case involved a prior equitable charge and a subsequent unregistered mortgage, with the central issue being whether the prior equity was postponed. The matter was heard in the relevant Australian court, which was tasked with determining the legal principles applicable to the priority of these interests.

The primary legal issue before the court was whether the registrability of the mortgage was relevant in determining the priority of the interests. Additionally, the court had to consider whether the holder of the subsequent equity had actual or constructive notice of the prior equity, and if such notice would defeat the claim for priority. The case required an examination of the maxim where equities equal, first in time prevails, and whether the equitable charge securing all moneys due and payable by a purchaser under a contract of sale of other land was valid.

The court determined that the registrability of the mortgage was not relevant to the priority of the interests. It held that the equitable charge was valid and enforceable, as it secured the deposit and other monies due under the contract of sale. The court found that the holder of the subsequent equity did not have actual or constructive notice of the prior equity, and therefore, the claim for priority was not defeated. Applying the maxim where equities equal, first in time prevails, the court held that the prior equitable charge had priority over the subsequent unregistered mortgage.

As a result of the court's decision, the final orders were made in favour of the party with the prior equitable charge, establishing their priority over the subsequent mortgage. The court's ruling clarified the legal principles concerning the priority of equitable interests in this context, ensuring that the relevant equities were properly considered and balanced.

Orders