Martins Agencies Ltd v Commonwealth Trading Bank & Ors [1986] FCA 216

Martins Agencies Ltd v Commonwealth Trading Bank & Ors [1986] FCA 216

The agreement amounted to a concluded and sufficiently certain contract for a mortgage, creating an equitable mortgage upon discharge of the prior mortgage. All defendants had constructive notice of the plaintiff's interest. The plaintiff was entitled to priority over subsequent mortgages and entitled to specific performance. Monies received by the Trading Bank at settlement are held on constructive trust for the plaintiff to the extent of the amount due.

Parties
Plaintiff: Martins Agencies Limited; First Defendant: Commonwealth Trading Bank of Australia; Second Defendant: Noel Joseph May; Second Defendant: Jacqueline May; Third Defendant: Commonwealth Savings Bank of Australia; Counter Claimant: Noel Joseph May; Counter Claimant: Jacqueline May; First Counter Defendant: Commonwealth Trading Bank of Australia; Second Counter Defendant: Commonwealth Savings Bank of Australia; Third Party: Ivens Francois Buffett
Jurisdiction
Australia
Judgment Date
13 May 1986
Procedural Posture
Real Property Dispute; Priorities; Equity; Mortgage; Specific Performance / Post Trial Judgment; Reasons for Judgment and Orders
Outcome
Plaintiff entitled to priority as equitable mortgagee. Counterclaims and third party claim dismissed by consent. Matter stood over for further hearing on form of relief.
Legal Topics
Priorities Between Mortgages, Equitable Interests in Land, Notice, Constructive Trust, Specific Performance, Equitable Mortgage, Effect of Conveyancing Ordinance 1913 (norfolk Island)
Real Property Equity Mortgage Law Priorities Between Mortgages Equitable Interests in Land Notice Constructive Trust Specific Performance +2 more

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Parties

Martins Agencies Limited

Plaintiff

Commonwealth Trading Bank of Australia

First Defendant

Noel Joseph May

Second Defendant

Jacqueline May

Second Defendant

Commonwealth Savings Bank of Australia

Third Defendant

Noel Joseph May

Counter Claimant

Jacqueline May

Counter Claimant

Commonwealth Trading Bank of Australia

First Counter Defendant

Commonwealth Savings Bank of Australia

Second Counter Defendant

Ivens Francois Buffett

Third Party

Procedural Posture

Real Property Dispute; Priorities; Equity; Mortgage; Specific Performance / Post Trial Judgment; Reasons for Judgment and Orders

Legal Issues

  1. 1 Whether agreement created an equitable mortgage over land in Norfolk Island
  2. 2 Effect of notice of agreement to grant mortgage on priorities
  3. 3 Whether equitable interests in land may be created without compliance with Conveyancing Ordinance 1913 (Norfolk Island)

Ratio Decidendi

The agreement amounted to a concluded and sufficiently certain contract for a mortgage, creating an equitable mortgage upon discharge of the prior mortgage. All defendants had constructive notice of the plaintiff's interest. The plaintiff was entitled to priority over subsequent mortgages and entitled to specific performance. Monies received by the Trading Bank at settlement are held on constructive trust for the plaintiff to the extent of the amount due.

Court Disposition

Plaintiff entitled to priority as equitable mortgagee. Counterclaims and third party claim dismissed by consent. Matter stood over for further hearing on form of relief.

Orders

  • Plaintiff to file and serve short minutes of order to give effect to reasons for judgment on or before 21 May 1986.
  • Defendants to give notice of any desired alterations or additions within seven days of short minutes being filed.