Falk v Haugh [1935] HCA 35

Falk v Haugh [1935] HCA 35

Under sec. 28 of the Financial Emergency Act 1931-1934 (Vic.), the requirement that ‘interest has been paid’ to a date within a prescribed period is met if sufficient rents and profits have been received by a mortgagee in possession after allowable deductions, so as to keep down the interest. Actual payment by or on behalf of the mortgagor is not necessary; an account may be taken to determine whether the statutory condition for relief against foreclosure is satisfied.

Parties
Appellant: Falk; Respondent: Haugh
Jurisdiction
Australia
Procedural Posture
Appeal / Appeal From the Supreme Court of Victoria to the High Court of Australia
Outcome
Appeal allowed; decision of the Supreme Court of Victoria (Mann J.) set aside.
Legal Topics
Mortgagee in Possession, Foreclosure, Statutory Relief From Foreclosure, Appropriation of Payments, Financial Emergency Legislation
Property Law Mortgage Law Mortgagee in Possession Foreclosure Statutory Relief From Foreclosure Appropriation of Payments Financial Emergency Legislation

Case Brief

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Parties

Falk

Appellant

Haugh

Respondent

Procedural Posture

Appeal / Appeal From the Supreme Court of Victoria to the High Court of Australia

Legal Issues

  1. 1 Whether a mortgagor is entitled to have an account taken of rents and profits received by a mortgagee in possession for the purpose of showing that interest has been paid within a statutory period, as a precondition to statutory relief against foreclosure under the Financial Emergency Act 1931-1934 (Vic).
  2. 2 Whether 'interest has been paid' under sec. 28 of the Act requires actual payment by or on behalf of the mortgagor, or is satisfied if the mortgagee has received sufficient rents and profits from the mortgaged property.

Ratio Decidendi

Under sec. 28 of the Financial Emergency Act 1931-1934 (Vic.), the requirement that ‘interest has been paid’ to a date within a prescribed period is met if sufficient rents and profits have been received by a mortgagee in possession after allowable deductions, so as to keep down the interest. Actual payment by or on behalf of the mortgagor is not necessary; an account may be taken to determine whether the statutory condition for relief against foreclosure is satisfied.

Court Disposition

Appeal allowed; decision of the Supreme Court of Victoria (Mann J.) set aside.

Orders

  • Matter remitted to the Supreme Court for hearing or rehearing.
  • Costs of the first hearing to be at the discretion of the Supreme Court.