Coughlan v George [2003] NSWSC 512

Coughlan v George [2003] NSWSC 512

The obligation to tender the principal was dispensed with by the conduct of the mortgagee, who made it clear he would not accept tender of the amount due unless a greater sum was paid; as a result, interest is not recoverable as damages and the mortgage should be discharged upon payment of $32,000 without interest.

Parties
Plaintiff: Mark John Coughlan; Defendant: Peter George
Jurisdiction
Australia
Judgment Date
11 June 2003
Procedural Posture
Civil / Judgment
Outcome
Mortgage to be discharged upon tender of $32,000; interest not payable.
Legal Topics
Mortgages, Interest Recoverability, Damages for Late Repayment, Tender Dispensation
Equity Mortgages Interest Recoverability Damages for Late Repayment Tender Dispensation

Case Brief

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Parties

Mark John Coughlan

Plaintiff

Peter George

Defendant

Procedural Posture

Civil / Judgment

Legal Issues

  1. 1 Whether interest may be awarded as damages where principal not repaid on due date and mortgage contains no covenant for interest
  2. 2 Whether conduct of mortgagee dispensed with obligation to tender principal
  3. 3 Whether mortgagor is in breach without tender

Ratio Decidendi

The obligation to tender the principal was dispensed with by the conduct of the mortgagee, who made it clear he would not accept tender of the amount due unless a greater sum was paid; as a result, interest is not recoverable as damages and the mortgage should be discharged upon payment of $32,000 without interest.

Court Disposition

Mortgage to be discharged upon tender of $32,000; interest not payable.

Orders

  • Short minutes of order to be brought in to effectuate discharge of mortgage upon tender of $32,000 without interest.