Bevham Investments Pty Ltd v Belgot Pty Ltd [1982] HCA 45

Bevham Investments Pty Ltd v Belgot Pty Ltd [1982] HCA 45

By majority, the mortgagor's covenant to pay rates and land tax created an obligation to pay "other money the payment of which is secured by the mortgage" within s. 57(2)(a). Because notice for such a pecuniary default could not be dispensed with under s. 58A, the mortgagee's failure to serve a notice complying with s. 57(3) meant that its statutory power of sale had not become exercisable. The appeal was therefore dismissed.

Jurisdiction
Australia
Procedural Posture
Appeal Concerning a Registered Mortgagee's Statutory Power of Sale / Appeal to the High Court of Australia From the Court of Appeal After Rath J. Granted a Declaration and Injunction Restraining Exercise of the Power of Sale
Outcome
Appeal dismissed with costs.
Legal Topics
['registered Mortgage' "mortgagee's Power of Sale" 'notice of Default' 'payment of Rates and Land Tax' 'acceleration Clause' 'real Property Act 1900 N.s.w.']
['property Law' 'real Property' 'mortgages' 'statutory Interpretation'] ['registered Mortgage' "mortgagee's Power of Sale" 'notice of Default' 'payment of Rates and Land Tax' 'acceleration Clause' 'real Property Act 1900 N.s.w.']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal Concerning a Registered Mortgagee's Statutory Power of Sale / Appeal to the High Court of Australia From the Court of Appeal After Rath J. Granted a Declaration and Injunction Restraining Exercise of the Power of Sale

Legal Issues

  1. 1 ['Whether default by a mortgagor under a covenant to pay rates and taxes as they fall due is a default in payment of "other money the payment of which is secured by the mortgage or charge" within s. 57(2)(a) of the Real Property Act 1900 N.S.W.' 'Whether the mortgagee could rely on an agreement in the mortgage dispensing with notice under s. 58A for defaults in payment of rates and land tax.' "Whether, in the absence of a notice complying with s. 57(3), the mortgagee's power of sale under s. 58 had become exercisable."]

Ratio Decidendi

By majority, the mortgagor's covenant to pay rates and land tax created an obligation to pay "other money the payment of which is secured by the mortgage" within s. 57(2)(a). Because notice for such a pecuniary default could not be dispensed with under s. 58A, the mortgagee's failure to serve a notice complying with s. 57(3) meant that its statutory power of sale had not become exercisable. The appeal was therefore dismissed.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']