Torre v Jonamill [2002] NSWSC 152

Torre v Jonamill [2002] NSWSC 152

The unregistered mortgage and the unregistered variations operated in equity and as deeds, but the variations increasing the "principal sum" did not acknowledge an actual indebtedness of $100,000. They increased the amount for which the mortgage was available as security, while the secured liability remained the actual balance owing within the "all moneys" categories. Because Ms Torre failed to prove a fixed debt of $100,000, an inquiry was required to ascertain the sum actually owing at completion and to determine the disposition of the fund.

Jurisdiction
Australia
Judgment Date
12 March 2002
Procedural Posture
Equity Division Proceedings Concerning Competing Claims to a Fund Arising From an Unregistered Mortgage and Judgment Execution / Judgment After Hearing; Orders Made Referring Inquiries to a Master
Outcome
Inquiry ordered; Ms Torre ordered to pay the first defendant's costs.
Legal Topics
['all Moneys Mortgage' 'unregistered Torrens Title Mortgage' 'variation of Mortgage' 'equitable Mortgage' 'judgment Creditor Priority' 'inquiry as to Secured Debt']
['mortgages' 'real Property' 'equity'] ['all Moneys Mortgage' 'unregistered Torrens Title Mortgage' 'variation of Mortgage' 'equitable Mortgage' 'judgment Creditor Priority' 'inquiry as to Secured Debt']

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Procedural Posture

Equity Division Proceedings Concerning Competing Claims to a Fund Arising From an Unregistered Mortgage and Judgment Execution / Judgment After Hearing; Orders Made Referring Inquiries to a Master

Legal Issues

  1. 1 ['Whether Ms Torre held an equitable mortgage over the undivided half share of Mr Briand and Mrs Briand in the Summerland Point property.' 'Whether unregistered instruments varying an unregistered mortgage of Torrens title land operated as deeds despite not being registered.' 'Whether the instruments increasing the "principal sum" to $100,000 established a fixed and certain debt of $100,000 secured by the mortgage, or merely increased the maximum amount for which the mortgage was available as security.' 'What disposition should be made of the fund held by the second and third defendants.']

Ratio Decidendi

The unregistered mortgage and the unregistered variations operated in equity and as deeds, but the variations increasing the "principal sum" did not acknowledge an actual indebtedness of $100,000. They increased the amount for which the mortgage was available as security, while the secured liability remained the actual balance owing within the "all moneys" categories. Because Ms Torre failed to prove a fixed debt of $100,000, an inquiry was required to ascertain the sum actually owing at completion and to determine the disposition of the fund.

Court Disposition

Inquiry ordered; Ms Torre ordered to pay the first defendant's costs.

Orders

  • ['There be referred to a Master for inquiry and determination the sum, if any, which was, at 24 August 2001, the aggregate of all moneys owing or payable by either or both of Jacques Briand and Marie Josephine Briand to Julie Torre, being moneys within the various descriptions in paragraphs (a) to (e) of clause 1A...