Re Allen [1917] HCA 32

Re Allen [1917] HCA 32

The mortgagee failed to show that existing circumstances justified departing from the restrictive intent of the Regulations. The prior State court judgment did not by itself constitute special grounds to grant leave. Each party is responsible for their own costs. Both parties are reminded to act reasonably to maintain or preserve the security.

Parties
Mortgagee: Robert Crawford; Mortgagor: Arthur Joseph Allen
Jurisdiction
Australia
Judgment Date
03 July 1917
Procedural Posture
Application Under War Precautions (moratorium) Regulations / Judgment on Application
Outcome
Applications dismissed.
Legal Topics
Foreclosure Proceedings, Leave to Proceed Against Mortgagor, Judicial Discretion Under Moratorium Regulations
Mortgage Law Banking and Finance War Emergency Law Foreclosure Proceedings Leave to Proceed Against Mortgagor Judicial Discretion Under Moratorium Regulations

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Parties

Robert Crawford

Mortgagee

Arthur Joseph Allen

Mortgagor

Procedural Posture

Application Under War Precautions (moratorium) Regulations / Judgment on Application

Legal Issues

  1. 1 Whether leave should be granted to a mortgagee to proceed with foreclosure, sale, or possession under the War Precautions (Moratorium) Regulations.
  2. 2 Whether judgment obtained by the mortgagee prior to the Regulations constitutes sufficient grounds for granting leave.

Ratio Decidendi

The mortgagee failed to show that existing circumstances justified departing from the restrictive intent of the Regulations. The prior State court judgment did not by itself constitute special grounds to grant leave. Each party is responsible for their own costs. Both parties are reminded to act reasonably to maintain or preserve the security.

Court Disposition

Applications dismissed.

Orders

  • Mortgagee's application for leave to proceed refused.
  • Mortgagor's application to reduce interest rate refused.