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Nunn v Wily

Nunn v Wily

Case [2001] NSWSC 317 27 April 2001

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Reported Decision:
[2001] ANZ ConvR 540
[2001] NSWSC 317
[2001] ACL Rep 110 NSW 28
[2001] ACL Rep 195 NSW 32
[2001] ACL Rep 295 NSW 3

New South Wales

Supreme Court

CITATION: Nunn v Wily [2001] NSWSC 317

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 3361/98

HEARING DATE(S): 4, 5 & 6 April, 2 May 2000

JUDGMENT DATE:
27 April 2001

PARTIES :

Lorraine Gwenneth Nunn (P)
Andrew Hugh Jenner Wily (D)

JUDGMENT OF: Austin J

COUNSEL : P Walsh (P)
W Haffenden (D)

SOLICITORS: Marks Griffiths Bova & Knox (P)
KNPW Lawyers (D)

CATCHWORDS: MORTGAGE - construction - whether parties intended to create a mortgage - where mortgage refers to an annexures A and B, whether annexures are identified though not labelled 'A' and 'B' - effect of mortgagee deferring execution - effect of absence of registration and lack of caveat - whether security prevails over trustee in bankruptcy of mortgagors - whether court should determine interest rate where interest rate has not been fixed under mortgage CONTRACT - rectification - whether mortgagee's right to rectify prevails over mortgagors' trustee in bankruptcy EVIDENCE - parol evidence - admissibility of evidence as to nature of transaction - admissibility of evidence to identify annexures

LEGISLATION CITED: Bankruptcy Act 1966 (Cth) ss 58, 120, 121
Real Property Act 1900 (NSW) ss 41, 56, 57

CASES CITED: AGC (Advances) Ltd v West (1984) 5 NSWLR 590
Ahmed v Kendrick (1987) 56 P & CR 120
Ayerst v C & K (Construction) Ltd [1976] AC 167
Barry v Heider (1914) 19 CLR 197
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Commercial Banking Co of Sydney Ltd v George Hudson Pty Ltd (1974) 131 CLR 605
Elders Trustee and Executor Co Ltd v EG Reeves Pty Ltd (1987) 78 ALR 193
Exton v Scott (1833) 6 Sim 31
Farrugia v Official Receiver in Bankruptcy (1982) 43 ALR 700
Finance & Investments Pty Ltd v Van Kempen (1986) 6 NSWLR 305
Gurfinkel v Bentley Pty Ltd (1966) 116 CLR 38
J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546
JJ Leonard Properties Pty Ltd v Leonard (WA) Pty Ltd (1988) 6 ACLC 247
Joscelyne v Nissen [1970] 2 QB 86
Manks v Whiteley [1912] 1 Ch 735, 754 (on appeal, Whiteley v Delaney [1914] AC 132)
Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336
Person-to-Person Financial Services Pty Ltd v Sharari [1984] 1 NSWLR 745
Re Anglo Oriental Carpet Manufacturing Co [1903] 1Ch 914
Re Ashpurton Estates Ltd [1983] Ch 110
Smith v Chadwick (1880) 20 ChD 27
State Rail Authority of NSW v Heath Outdoor Pty Ltd (1986) 7 NSWLR 170
Vector Capital Ltd v SNS Software Network Systems Pty Ltd (1988) 12 NSWLR 1
Westland Savings Bank v Hancock [1987] 2 NZLR 21
Williams & Glyn's Bank Ltd…

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 Nunn v Wily

Details

AGLC: Nunn v Wily [2001] NSWSC 317
Case: [2001] NSWSC 317
Decision Date: 27 April 2001

CaseChat Overview and Summary

In the case of Nunn v Wily, the High Court was asked to consider various issues related to the interpretation and effect of a mortgage deed and the rights of different parties involved. The dispute arose between the mortgagee, Mr. Nunn, and the trustee in bankruptcy of the mortgagors, Mr. Wily. The central issue was whether the parties intended to create a mortgage and, if so, whether the mortgage was effective despite the absence of registration and the presence of a caveat. The court was also required to determine whether the mortgagee had the right to rectify the mortgage deed and whether parol evidence could be used to identify the annexures referred to in the mortgage.

The court examined the language of the mortgage deed and found that the parties had indeed intended to create a mortgage, even though the annexures were not specifically labelled 'A' and 'B'. The court held that the annexures could still be identified through the content and context of the mortgage deed. The court further found that the mortgagee's right to rectify the mortgage deed was not superior to the rights of the trustee in bankruptcy, as the rectification would have the effect of altering the original agreement between the parties. Regarding the interest rate, the court declined to fix a rate, as it was not within the court's jurisdiction to do so.

The High Court concluded that the mortgage was effective despite the absence of registration and the lack of a caveat, as the mortgagee had deferred execution of the mortgage. The court also found that the security created by the mortgage prevailed over the trustee in bankruptcy of the mortgagors. Parol evidence was admissible to identify the annexures referred to in the mortgage deed, but it could not be used to alter the terms of the agreement. The court held that the mortgagee's right to rectify the mortgage deed was not superior to the rights of the trustee in bankruptcy, and the court declined to fix an interest rate as it was not within its jurisdiction to do so.

Orders