Re Allen

In *Re Allen*, the Supreme Court of Victoria considered the rights and duties of a mortgagor and mortgagee in relation to a judgment obtained by the mortgagee for the amount of the mortgage. The dispute arose from the mortgagee's pursuit of a judgment for the full mortgage debt.

The central legal issue before the Court was whether the mortgagee, having obtained a judgment for the principal sum secured by the mortgage, was thereafter precluded from exercising its rights under the mortgage, specifically the right to sell the mortgaged property. This question turned on the interpretation of the War Precautions (Moratorium) Regulations.

The Court reasoned that the Regulations were intended to provide relief to mortgagors during wartime by preventing mortgagees from exercising certain rights without leave of the court. However, the Regulations did not extinguish the debt itself or the mortgagee's right to sue for it. By obtaining a judgment for the mortgage amount, the mortgagee had effectively converted the debt into a judgment debt. The Court held that this did not prevent the mortgagee from subsequently seeking to enforce that judgment by exercising its rights under the mortgage, including the power of sale, as this was a means of satisfying the judgment debt.

The Court therefore held that the mortgagee was not precluded from exercising its power of sale.