Re Hynds

This matter concerned applications by mortgagees, Robert Hardy Topham and the Cascade Brewery Co. Ltd., for leave to take proceedings against the mortgagor, Robert Hynds, for redemption or repayment of secured principal sums. The applications were heard together by Barton J. of the High Court of Australia.

The legal issues before the Court were whether the mortgagees had satisfied the requirements of the War Precautions (Moratorium) Regulations, specifically regulation 4(5), to be granted leave to call up principal sums and exercise powers of sale or foreclosure. This involved determining the onus of proof on the applicants and whether the circumstances of the mortgagor, Robert Hynds, warranted an exception to the moratorium protections.

Barton J. held that under regulation 4(5), the onus was on the mortgagee to demonstrate either that the security was of a wasting nature such that its continuance would be seriously affected, or that the mortgagor's conduct rendered him undeserving of the regulations' protection. The Court found that the applicants had failed to provide evidence satisfying either of these conditions. Furthermore, the Court considered that the mortgagor's inability to pay interest or principal, exacerbated by wartime conditions and a poor fruit season, meant that the moratorium was intended to protect him. The Court also found it was not unjust or inequitable to refuse the applications.

Consequently, both applications for leave were dismissed. The applicants were ordered to pay the costs of the fourth mortgagees, Burgess and Cummins, who had opposed the applications, in equal moieties. Robert Hynds, not having appeared, was not awarded costs.