Kennard, C.C. & Anor v AGC (Advanced) Ltd & Anor [1986] FCA 570

Kennard, C.C. & Anor v AGC (Advanced) Ltd & Anor [1986] FCA 570

It is appropriate to vary the mortgage—rather than set it aside—by including clauses protecting the applicants from personal liability and entitling them to one-half of sale proceeds, and to control the manner in which the respondent may enforce or sell the mortgage security, in exercise of equitable jurisdiction and powers under s.87 of the Trade Practices Act.

Jurisdiction
Australia
Judgment Date
28 November 1986
Procedural Posture
Civil / Supplementary Reasons for Judgment and Final Orders
Outcome
Mortgage varied with protective clauses; applicants awarded costs.
Legal Topics
['variation of Mortgage' 'rectification' 'trade Practices Act S.87' 'equitable Relief']
['mortgage Law' 'equity'] ['variation of Mortgage' 'rectification' 'trade Practices Act S.87' 'equitable Relief']

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Procedural Posture

Civil / Supplementary Reasons for Judgment and Final Orders

Legal Issues

  1. 1 ['What is the appropriate order to reflect the basis on which the applicants executed the mortgage?' 'Should the mortgage be rectified or set aside in relation to the applicants?' "What practical steps are necessary to protect the applicants’ equity in the land without unduly limiting the respondent's rights as mortgagee?"]

Ratio Decidendi

It is appropriate to vary the mortgage—rather than set it aside—by including clauses protecting the applicants from personal liability and entitling them to one-half of sale proceeds, and to control the manner in which the respondent may enforce or sell the mortgage security, in exercise of equitable jurisdiction and powers under s.87 of the Trade Practices Act.

Court Disposition

Mortgage varied with protective clauses; applicants awarded costs.

Orders

  • ['The Bill of Mortgage is varied by addition of clauses prohibiting enforcement of personal liability against the applicants and providing for payment of one-half of sale proceeds to the applicants after deduction of reasonable sale expenses.' 'First respondent cannot execute a contract for sale of the land or...