Re Carl Heinrich Schurr; - [1920] HCA 38

27 CLR 442

IN RE CARL HEINRICH SCHURR; Ex PARTE THE PUBLIC Trading with the Enemy-Enemy subject-Property held by Public Trustee-Pay-

ment thereout of debts-Principal due under mortgage--Form of order-Costs- Trading with the Enemy Act 1914-1916 (No. 9 of 1914-No. 20 of 1916), sec. MELBOURNE, June 10, 15.

Where, under sec. 9D (2) of the Trading with the Enemy Act 1914-1916, the Public Trustee is authorized to pay out of the property paid to him in respect of an enemy subject a mortgage debt and interest due by him, the order should provide that the mortgagee should execute a proper discharge of the mortgage, and deliver up upon oath to the Public Trustee all titles and other documents relating to the land mortgaged.

The costs of a motion for an order under sec. 9D (2) of the Public Trustee and of the enemy subject were allowed out of the property in the hands of the MOTION.

This was an application under sec. 9D (2) of the Trading with the Enemy Act 1914-1916 on behalf of Robert McKeeman Oakley, the Public Trustee, for an order authorizing him to pay out of the

27 CLR 443

sum of £1,844 11s. 11d. held by him in respect of one Carl Heinrich Schurr, an enemy subject, the sum of £1,400, the amount of prin- cipal due and owing by Schurr to one Thomas Elford Edwards under a mortgage dated 30th October 1912 and registered in the Office of Titles, together with any interest due thereunder, and all necessary legal expenses and charges incidental to the discharge of the said mortgage. On 26th September 1919, pursuant to sec. 9I of the Act, the Minister for Trade and Customs by order vested in the Public Trustee certain land, the property of Schurr, an enemy subject, within the meaning of the Act. The value of the land was now £2,000. Interest on the said mortgage was payable quar- terly at the rate of five per centum per annum. On 21st April 1920 the mortgagee called in the loan of £1,400, and now required repayment thereof in terms of the mortgage.

By an order of the Solicitor-General of the Commonwealth, in exercise of certain delegated powers under regulations made under the War Precautions Act 1914-1916, certain shares held by Schurr in certain companies were transferred to and vested in the Public Trustee pursuant to reg. 9 of the War Precautions (Enemy Share- holders) Regulations 1916; and on 17th April 1917 the Solicitor- General directed the sale of the shares, and they were sold on 31st October 1917. The proceeds of such sale were paid to the Public Trustee, and by order dated 16th August 1919 the Acting Solicitor- General declared that these moneys held by the Public Trustee were vested in him under the Trading with the Enemy Act 1914-1916. The sum of £1,844 11s. 11d. was held by him, representing the proceeds of such sale and dividends and interest received by him in respect of the shares.…

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.

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Details

Case: [1920] HCA 38
Decision Date: 15 June 1920

CaseChat Overview and Summary

This matter concerned an application by Robert McKeeman Oakley, the Public Trustee, under section 9D(2) of the *Trading with the Enemy Act 1914-1916*. The Public Trustee sought authorization to pay a mortgage debt and accrued interest, along with incidental legal expenses, from funds held by him in respect of Carl Heinrich Schurr, an enemy subject. The funds in question, totalling £1,844 11s. 11d., represented the proceeds of the sale of Schurr's company shares, along with dividends and interest received. The mortgage debt amounted to £1,400 principal, secured by a mortgage registered in the Office of Titles, which the mortgagee had called in. Counsel for Schurr appeared and indicated that while he did not consent to the application, he considered it to be in Schurr's best interests and sought costs.

The primary legal issue before the Court was the appropriate form of order to be made under section 9D(2) of the *Trading with the Enemy Act 1914-1916* to facilitate the payment of the mortgage debt and ensure the proper discharge of the mortgage. The Court was also required to determine the allocation of costs for the motion.

Starke J. reasoned that for the discharge of the mortgage to be effective, the order must stipulate that the mortgagee execute a proper discharge and deliver up all relevant title deeds and documents to the Public Trustee. The Court ordered that the Public Trustee be authorized to pay the principal, interest, and necessary costs, charges, and expenses to the mortgagee, Thomas Elford Edwards. This authorization was conditional upon Edwards executing a discharge of the mortgage and reconveying the mortgaged premises to the Public Trustee, free of encumbrances created by him, and delivering up all related documents upon oath. The costs of the Public Trustee and of Carl Heinrich Schurr were allowed out of the property held by the Public Trustee.

Orders