BRENNAN CJ: The Deputy Registrar has been informed by Gillis Delaney Brown, solicitors for the second respondent in this matter, that the second respondent does not wish to be represented at the hearing of the application for special leave to appeal and will submit to any order of the Court save as to costs.

MR KNAGGS: Thank you, your Honour.

BRENNAN CJ: Yes, Mr Knaggs, what is the special leave point in this case?

MR KNAGGS: Your Honours, the main special leave point, in my submission, goes to what I have not so described in the summary of argument but which I would now like to describe as the perversity of the finding by the Court of Appeal who considered the facts as well as the law on this appeal in this workers’ compensation matter in finding that the respondent was a deemed worker under the New South Wales Workers Compensation Act.

Your Honours, the submission was made to the Court of Appeal and to the courts below - the courts below being a commissioner of the Compensation Court and also a judge on review who was Judge Burke - that the income tax return of the respondent shows, I think, in my submission - I can say categorically that it was the tax return of someone carrying on business. Your Honours, the matter was in fact - - -

GAUDRON J: Really what you were faced with in that situation was a case where you were asking the court to draw inferences from the tax return.

MR KNAGGS: Yes, your Honour.

GAUDRON J: That is as high as you can put it. It did not show categorically. You were asking that the inference be drawn.

MR KNAGGS: Yes, your Honour. It was a tax return that within its four corners could only be a tax return of someone carrying on a business unless there was some reason why the tax return could be discounted for some monumental error, I suppose, is my submission. It does not purport to be anything but the tax return of someone carrying on a business. It is on the business form. It refers to “proprietor” and “proprietor’s” - - -

GUMMOW J: Justice Bainton dealt with this in some detail at page 38 and following as to whether or not this inference should be drawn. Why should we then get involved in reagitating that…

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 Scerri v Cahill

Details

AGLC: Scerri v Cahill [1996] HCATrans 216
Case: [1996] HCATrans 216
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal from the Supreme Court of New South Wales in a dispute between Scerri and Cahill. The case concerned the interpretation and application of certain provisions of the *Real Property Act 1900* (NSW) and the *Conveyancing Act 1919* (NSW) in the context of a mortgage over land.

The central legal issues before the High Court were whether a mortgagee's right to possession of mortgaged land was extinguished by the mortgagor's default and whether the mortgagor retained a right to redeem the mortgage after default. The Court also had to determine the effect of a notice served by the mortgagee on the mortgagor under the relevant legislation.

The High Court held that the right to possession of mortgaged land vested in the mortgagee upon default by the mortgagor, but this right was not absolute and was subject to the mortgagor's equity of redemption. The Court reasoned that the statutory provisions did not alter the fundamental nature of a mortgage as a security interest, which preserves the mortgagor's right to redeem the property upon payment of the outstanding debt. The notice served by the mortgagee was found to be a procedural step towards exercising its rights, not an act that extinguished the mortgagor's equity of redemption.

The High Court allowed the appeal, setting aside the orders of the Supreme Court and remitting the matter for further consideration.

Orders