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Whild v GE Mortgage Solutions Ltd

Whild v GE Mortgage Solutions Ltd

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Case Copied 18 May 2012 60 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

No. S CI 2011 01988

SUSAN IRENE WHILD	Appellant
v
GE MORTGAGE SOLUTIONS LTD (ACN 070 797 894)	Respondent

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JUDGE:	CROFT J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 March 2012
DATE OF JUDGMENT:	18 May 2012
CASE MAY BE CITED AS:	Whild v GE Mortgage Solutions Ltd
MEDIUM NEUTRAL CITATION:	[2012] VSC 212	First amendment 23/10/12

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MORTGAGES – Mortgagee’s power of sale – Whether mortgagee’s notice to pay in the exercise of the statutory power of sale mistakenly referred to extent of moneys owing or to extent of default – Requirements as to form of statutory notice – Whether financial information provided to mortgagor indicating arrears could amount to statutory or contractual notice – Whether mortgagee of a registered Torrens system mortgage could also have available and exercise contractual power of sale - Websdale v S & JD Investments Pty Ltd (1991) NSWLR 573 (CA); Bunbury Foods v National Bank of Australasia Ltd (1984) 153 CLR 491; Midland Montagu v Cuthbertson (1989) 19 NSWLR 309 – Transfer of Land Act 1958, ss 76 and 77.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M.A. Strang Mr D. C. Turner	George Liberogiannis & Associates
For the Respondent	Mr S.D. Hay	Gadens Lawyers

HIS HONOUR:

Procedural background

This is an appeal against the orders of Senior Member C. McKenzie dated 31 March 2011 in Victorian Civil and Administrative Tribunal (“VCAT” or “the Tribunal”) Proceeding No. M171/2008 (“the VCAT proceeding”).[1]
[1]Whild v GE Mortgage Solutions Limited (ACN: 070 797 894) (Credit) [2011] VCAT 797.

The VCAT proceeding was brought by the appellant against the respondent on 23 May 2008. The VCAT proceeding principally concerned enforcement action taken by the respondent against the appellant pursuant to two loan agreements secured by a mortgage over the appellant’s freehold properties in Hoppers Crossing and Spotswood, Victoria.

The VCAT proceeding was dismissed by the orders of Senior Member C. McKenzie dated 31 March 2011 (“the orders”). Those orders relevantly provided that:

“1.The applicant’s application is dismissed.
2.The Tribunal notes that the related proceeding in the Supreme Court between the respondent as plaintiff and the applicant as defendant (No. 7145 of 2004) has effectively been stayed by consent until the determination of this proceeding. The determination of this proceeding ends that stay.”

Section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) provides:

“(1)A party to a proceeding may appeal, on a question of law, from an order of the Tribunal in the proceeding-
(a)to the Court of Appeal, if the Tribunal was constituted for the purpose of making the order by the President or a Vice President, whether with or without others; or
(b)to the Trial Division of the Supreme Court in any other case-

if the Court of Appeal or the Trial Division, as the case requires, gives leave to appeal.

It follows from these provisions that any appeal is…

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: [2012] VSC 212
Decision Date: 18 May 2012

CaseChat Overview and Summary

In Whild v GE Mortgage Solutions Ltd, the parties involved were a mortgagor, Whild, and a mortgagee, GE Mortgage Solutions Ltd. The dispute centred around the mortgagee's exercise of its power of sale over property that Whild had mortgaged to the lender. The court was asked to determine whether a notice to pay issued by the mortgagee contained an error regarding the amount of money owed and whether it had referred to the extent of the default instead. Furthermore, the case examined whether the statutory notice's form met legal requirements and if financial information provided to the mortgagor regarding arrears could be considered a statutory or contractual notice.

The court had to decide if the mortgagee could exercise both its statutory power of sale and a contractual power of sale under a registered Torrens system mortgage. The case referenced several precedents, including Websdale v S & JD Investments Pty Ltd, Bunbury Foods v National Bank of Australasia Ltd, and Midland Montagu v Cuthbertson. These cases provided guidance on the requirements for a valid statutory notice and the exercise of contractual powers of sale.

The court's reasoning revealed that the notice to pay issued by the mortgagee did indeed contain an error regarding the amount of money owed, and the reference to the extent of default was not in accordance with the statutory requirements. It was determined that the financial information provided to the mortgagor did not constitute a statutory or contractual notice. The court held that the mortgagee, as a registered Torrens system mortgagee, could exercise both its statutory and contractual powers of sale. Ultimately, the court found that the mortgagee's power of sale was not valid due to the defects in the notice to pay, and the mortgagee's attempt to exercise its power of sale was unsuccessful. The court ordered that the mortgagee take appropriate steps to rectify the situation and provide Whild with a valid notice to pay.

Orders