Partridge v McIntosh & Sons Ltd

The case of *Partridge v. McIntosh & Sons Ltd.* concerned an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The dispute arose when McIntosh & Sons Ltd., a mortgagee, distrained upon and sold goods found on mortgaged premises, including goods belonging to the mortgagor's wife, Mrs. Partridge. Mrs. Partridge contended that her goods were unlawfully seized.

The central legal issues before the High Court were whether the mortgagee, by virtue of a registered second mortgage containing an attornment clause, had the lawful right to distrain upon the goods of a stranger (Mrs. Partridge) found on the mortgaged premises, and whether such a right existed independently of the mortgagee serving notice to enter into receipt of rents and profits. The mortgagor had defaulted on the mortgage payments, and the mortgagee treated the outstanding amounts as rent.

The High Court held that the attornment clause in the mortgage operated solely to create an estoppel *inter partes* between the mortgagor and the mortgagee. Crucially, it did not create a legal reversion in the mortgagee to which the right of distress was incident. Therefore, the mortgagee did not possess the right to distrain upon the goods of a stranger, such as Mrs. Partridge, who was not a party to the estoppel. The Court further found that the provisions of section 60 of the *Real Property Act 1900* (N.S.W.) did not grant the mortgagee the authority to distrain on the goods of a stranger in these circumstances, nor was the requirement for notice under section 63 of the Act satisfied.

Consequently, the High Court reversed the decision of the Supreme Court of New South Wales on the point concerning the mortgagee's right to distrain on the goods of a stranger, allowing the appeal. The appeal was allowed with costs, and the formal verdict for Mrs. Partridge was to be entered.