Court of Appeal (Qld)|2002-12-06|Before: McMurdo P, Williams JA and Atkinson JSeparate, reasons for judgment of each member of the court, each concurring as to the, orders made
McMurdo P, Williams JA and Atkinson JSeparate, reasons for judgment of each member of the court, each concurring as to the, orders made
Catchwords
MORTGAGES – MORTGAGES AND CHARGES GENERALLY – THE MORTGAGE
– LIABILITIES SECURED – where debts secured by
two mortgages over
residential property of the appellants – where third party company paid
Source
Original judgment source is linked above.
Catchwords
MORTGAGES – MORTGAGES AND CHARGES GENERALLY – THE MORTGAGE– LIABILITIES SECURED – where debts secured bytwo mortgages overresidential property of the appellants – where third party company paiddebts and took mortgage over residentialproperty as security for the loan– where third party company transferred mortgage to respondent to secure aloan used to payout the original debts – whether certificate ofindebtedness was conclusive evidence of the debt – whether debtor bearsonus of demonstrating the debt has been repaidCONTRACTS – GENERALCONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS– IMPLIED TERMS –GENERALLY – where appellants and third partycompany entered into a debt factoring agreement – whether an obligationtoaccount was an implied term in the agreement – whether failure to accountwould render the contract void ab initioLand Title Act1994 (Qld), s 62(1)Property Law Act 1974 (Qld), s
57Ashenhurst v James [1745] EngR 30
3 Atk 271
(1745) 26 ER 958,
followedBP Refinery (Westernport) Pty Ltd v Hastings Shire Council
(1977) 180 CLR 266, followedClarke v Tipping [1846] EngR 548
(1846) 9 Beav 284
50 ER 352, followedConsolidated Trust Co Ltd v Naylor (1936) 55 CLR
423, appliedCommonwealth Bank of Australia v Muirhead [1997] 1 Qd R,
followedMcDonald v Dennys Lascelles Ltd [1933] HCA 25
(1933) 48 CLR 457,
appliedNoble v State of Victoria [1999] QCA 110
[2000] 2 Qd R 154, followedRe
Tahiti Cotton Co
Ex parte Sargent (1874) LR 17 Eq 273,
followedSecured Income Real Estate (Australia) Ltd v St Martins
Investments Pty Ltd [1979] HCA 51
(1979) 144 CLR 596, followedYoung v Queensland
Trustees Limited [1956] HCA 51
(1956) 99 CLR 560, followed
Judgment (14 paragraphs)
[1]
MORTGAGES - MORTGAGES AND CHARGES GENERALLY - THE MORTGAGE - LIABILITIES SECURED - where debts secured by two mortgages over residential property of the appellants - where third party company paid debts and took mortgage over residential property as security for the loan - where third party company transferred mortgage to respondent to secure a loan used to pay out the original debts - whether certificate of indebtedness was conclusive evidence of the debt - whether debtor bears onus of demonstrating the debt has been repaid
[2]
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - CONSTRUCTION AND INTERPRETATION OF CONTRACTS - IMPLIED TERMS - GENERALLY - where appellants and third party company entered into a debt factoring agreement - whether an obligation to account was an implied term in the agreement - whether failure to account would render the contract void ab initio