Connolly v Ryan [1922] HCA 25

Connolly v Ryan [1922] HCA 25

The restriction imposed by sec. 117 on the mortgagor's right to sue in his own name applies only to causes of action in respect of which the mortgagee is empowered to sue by sec. 116. The burden of proving that the mortgagee could have brought the action lies on the defendant. As there was no evidence of default or terms excluding the mortgagor's right to possession, the respondent failed to prove that the action was one for which the mortgagee could sue, and thus the mortgagors did not require the mortgagee's consent to bring the action.

Parties
Appellant; Plaintiff: Patrick Andrew Connolly; Appellant; Plaintiff: Freda Hale; Respondent; Defendant: Matthew Ryan
Jurisdiction
Australia
Judgment Date
02 June 1922
Procedural Posture
Appeal / Final Judgment on Appeal From the Supreme Court of Western Australia
Outcome
Appeal allowed. Judgment for plaintiffs with costs.
Legal Topics
Mortgages, Right to Possession, Procedure Under Transfer of Land Act 1893 (w.a.)
Property Law Mortgages Right to Possession Procedure Under Transfer of Land Act 1893 (w.a.)

Case Brief

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Parties

Patrick Andrew Connolly

Appellant; Plaintiff

Freda Hale

Appellant; Plaintiff

Matthew Ryan

Respondent; Defendant

Procedural Posture

Appeal / Final Judgment on Appeal From the Supreme Court of Western Australia

Legal Issues

  1. 1 Whether the consent of the mortgagee was necessary for the mortgagors to bring an action for possession against a trespasser under the Transfer of Land Act 1893 (W.A.)
  2. 2 Who bears the burden of proof regarding the mortgagee's right to sue for possession under sec. 116

Ratio Decidendi

The restriction imposed by sec. 117 on the mortgagor's right to sue in his own name applies only to causes of action in respect of which the mortgagee is empowered to sue by sec. 116. The burden of proving that the mortgagee could have brought the action lies on the defendant. As there was no evidence of default or terms excluding the mortgagor's right to possession, the respondent failed to prove that the action was one for which the mortgagee could sue, and thus the mortgagors did not require the mortgagee's consent to bring the action.

Court Disposition

Appeal allowed. Judgment for plaintiffs with costs.

Orders

  • Order of Supreme Court set aside
  • Judgment entered for plaintiffs with costs