Ward v McDonald - [2025] VSC 186

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PROPERTY LIST

S ECI 2023 05140

BETWEEN:

SAMANTHA JANE WARD	Plaintiff
v
MARGARET LUCY McDONALD, in her capacity as Executor of the deceased estate of TRACEY SUSAN ELLERY & ANOR (according to the attached Schedule)	Defendants

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JUDGE:	Finanzio J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 March 2025
DATE OF JUDGMENT:	16 April 2025
CASE MAY BE CITED AS:	Ward v McDonald
MEDIUM NEUTRAL CITATION:	[2025] VSC 186

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MORTGAGE – Discharge of mortgage – Moratoria – Whether effect of Memorandum of Common Provisions excludes the operation of limitations provisions – Limitations of Actions Act (Vic) ss 8, 18, 20(1) - Price v Spoor (2021) 270 CLR 450 - Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Purton of Counsel	DSA Law
For the Defendants	Mr M Black of Counsel	Aitken Partners

HIS HONOUR:

Introduction

Samantha Ward (‘the Plaintiff’) is the registered proprietor of the property at 100 Aberdeen Street, Geelong West, Victoria (‘the Property’). In substance, Ms Ward is seeking orders for removal of the mortgage registered over the Property on the basis that any rights the mortgagee might have are now statute barred.
Ms Ward and Wayne Ellery began a relationship in 2000 and began living together in 2001. They initially lived on a farm owned by Mr Ellery’s sister, Tracey Ellery, and her husband, Evan Thornley. In around 2004, Ms Ward was told by Mr Ellery that his sister, Ms Ellery, and Mr Thornley wanted the couple to leave the farm. Ms Ward and Mr Ellery sought to acquire their own place. They borrowed money from Ms Ellery and Mr Thornley to buy the land at 100 Aberdeen Street, West Geelong. On 4 June 2004, Ms Ward and Mr Ellery entered into a written loan agreement (‘the Loan Agreement’) with Ms Ellery and Mr Thornley. The stated purpose of the loan was to purchase the Property. The Loan Agreement was executed as a Deed.
The Deed records that, as at 4 June 2004, Ms Ward and Mr Ellery had already received $55,000 from Ms Ellery and Mr Thornley, and would receive an additional sum of $306,306.11, bringing the total amount borrowed to $361,306.11.
Ms Ward alone was to become the registered proprietor of the Property, notwithstanding that Mr Ellery was intended to live with her at the Property.
The Loan Agreement provided that the loan would be secured by a mortgage in favour of Ms Ellery and Mr Thornley as Mortgagees. The Mortgage was executed on 4 June 2004 (‘the Mortgage’). Ms Ward, as sole registered proprietor and mortgagor, provided the Mortgage over the Property. Mr Ellery was noted on the Mortgage as a co-debtor.
The Mortgage incorporated the Memorandum of Common Provisions AA 429 (‘MCP’).
On 10 June 2004, Ms Ellery and Mr Thornley advanced $306,306.11 and settlement of the Property occurred. The Mortgage was registered…

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 Ward v McDonald

Details

AGLC: Ward v McDonald [2025] VSC 186
Case: [2025] VSC 186
Decision Date: 16 April 2025

CaseChat Overview and Summary

The dispute between the parties in Ward v McDonald centred around the discharge of a mortgage, with the respondent seeking to enforce a mortgagee's right of sale following the borrower's default. The case was heard in the Supreme Court of Victoria. The appellants argued that the effect of a Memorandum of Common Provisions excluded the operation of limitations provisions in the Limitations of Actions Act (Vic), which would otherwise have prevented the mortgagee from enforcing the mortgage. The court was required to determine whether the Memorandum of Common Provisions excluded the application of the limitations provisions and, if not, whether the mortgagee's claim was statute-barred.

The court considered the relevant statutory provisions and case law, including Price v Spoor and Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd. It found that the Memorandum of Common Provisions did not exclude the operation of the limitations provisions and that the mortgagee's claim was statute-barred. The court held that the Memorandum of Common Provisions did not contain any express language that excluded the operation of the limitations provisions, and that the limitations provisions were mandatory and could not be excluded by contract. The court also found that the mortgagee's claim was barred by the six-year limitation period set out in section 8 of the Limitations of Actions Act (Vic).

The Supreme Court of Victoria dismissed the respondent's claim for enforcement of the mortgage, holding that the claim was statute-barred. The court emphasised the importance of strict compliance with the limitations provisions in the Limitations of Actions Act (Vic) and noted that the limitations provisions were intended to provide certainty and finality to legal proceedings. The court's decision in Ward v McDonald highlights the need for careful drafting of contractual provisions to ensure that they do not inadvertently exclude the operation of mandatory statutory provisions.

Orders