Torre v Jonamill - [2002] NSWSC 152

CITATION: Torre v Jonamill [2002] NSWSC 152

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 5207/01

HEARING DATE(S): 28/02/02

JUDGMENT DATE: 12 March 2002

PARTIES :

Julie Torre - Plaintiff
Jonamill Pty Limited - First Defendant
Neale Marshall - Second Defendant
Robert McLaughlin - Third Defendant

JUDGMENT OF: Barrett J

COUNSEL : Mr J.E. Armfield - Plaintiff
Mr P.M. Barham - Defendants

SOLICITORS: McLaughlin & Riordan - Plaintiff
Wood Marshall Williams - Defendants

CATCHWORDS: MORTGAGES - mortgages and charges generally - construction of "all moneys" mortgage - MORTGAGES - variation of unregistered mortgage of Torrens title land by statutory form of variation - significance of lack of registration of both mortgage and variation

LEGISLATION CITED: Real Property Act 1900
Conveyancing Act 1919

CASES CITED: Anning v Anning (1907) 4 CLR 1049
Mercantile Mutual Life Insurance Co Ltd v Gosper (1991) 25 NSWLR 32
Milroy v Lord (1862) 4 DeG F & J 264
PT Ltd v Maradona Pty Ltd (1992) 25 NSWLR 643
Scarel v City Loan & Credit Corporation Pty Ltd (1986) 4 BPR 9226

DECISION: Refer paragraphs 31 to 34 inclusive

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

TUESDAY, 12 MARCH 2002

5207/01 – TORRE v JONAMILL PTY LIMITED

JUDGMENT

1 These proceedings concern competing claims to a fund of $46,888.88 created by agreement between the plaintiff, Julie Torre (“Ms Torre”) and the first defendant, Jonamill Pty Limited (“Jonamill”). The fund is held in the form of an interest bearing bank deposit by the second and third defendants. They are the respective solicitors for Ms Torre and Jonamill.

2 It is necessary to describe briefly the background to and nature of the agreement. In December 1993, Ms Torre became one of several co-owners of real property at Summerland Point. She and her two daughters held, as joint tenants, an undivided one half share in that property, the other undivided one half share being held by Jacques Briand (“Mr Briand”) and Marie Josephine Briand (“Mrs Briand”) as joint tenants. In the latter part of 2001, the property was, by consensus of the five co-owners, sold for a price of $350,000 which was paid in cash on completion which occurred on 24 August 2001. A sum of $185,000 was, on completion, paid to Aussie Home Loans which thereupon delivered a discharge of a registered mortgage held by it. Mr Briand and Mrs Briand were, as among the co-owners, entitled to $82,500 (subject to completion adjustments), being one-half of the balance after payment of the mortgagee. It was from that entitlement that the fund of $45,888.88 was set aside and invested by the solicitors for Ms Torre and Jonamill.

3 Ms Torre had, over a period of several years before the sale, lent money to Mrs Briand and, to a lesser extent, Mr Briand. They, in February 1994, executed in favour of Ms Torre a form of mortgage in respect of their undivided share in the property at Summerland Point the title to which…

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 Torre v Jonamill

Details

AGLC: Torre v Jonamill [2002] NSWSC 152
Case: [2002] NSWSC 152
Decision Date: 12 March 2002

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Torre initiated proceedings against Jonamill concerning the interpretation of a mortgage agreement and the validity of a subsequent variation. Torre, the original mortgagee, argued that the variation, which was not registered, did not alter the original mortgage terms. Jonamill, the subsequent mortgagee, contended that the variation was valid and enforceable, irrespective of its registration status.

The court was tasked with determining whether the phrase "all moneys" in the mortgage agreement included any future sums owed by the mortgagor, and if the unregistered variation of the mortgage was legally binding. Specifically, the court needed to ascertain whether the lack of registration affected the enforceability of the variation and if the terms of the original mortgage could be altered without registration.

The court held that the term "all moneys" in the mortgage did indeed encompass future sums owed by the mortgagor. Consequently, the variation, which was not registered, was not effective in altering the original mortgage terms. The court emphasised the importance of registration for the validity of the variation, stating that the unregistered variation could not supersede the original mortgage agreement. The court's decision underscored the principle that any alteration to a mortgage must be properly registered to be enforceable.

As a result of the court's ruling, the variation was deemed invalid, and the original mortgage terms remained in effect. The court ordered that the variation be disregarded and that Torre's rights under the original mortgage be upheld.

Orders