Partridge v McIntosh and Sons Limited [1933] HCA 38

Partridge v McIntosh and Sons Limited [1933] HCA 38

A mortgagee under a registered Real Property Act mortgage, containing only an attornment clause, does not acquire a reversion or right of possession sufficient to support distress for rent against the goods of a stranger found on the mortgaged premises; the estoppel created operates only as between the mortgagor and mortgagee, and does not bind third parties not privy to the estoppel.

Parties
Appellant: Mrs. Partridge; Respondent: McIntosh & Sons Ltd.
Jurisdiction
Australia
Procedural Posture
Appeal / High Court of Australia Appeal From the Supreme Court of New South Wales (full Court)
Outcome
Appeal allowed
Legal Topics
Distress for Rent, Mortgages, Attornment Clauses, Rights of Third Parties, Remedies of Mortgagee
Real Property Landlord and Tenant Distress for Rent Mortgages Attornment Clauses Rights of Third Parties Remedies of Mortgagee

Case Brief

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Parties

Mrs. Partridge

Appellant

McIntosh & Sons Ltd.

Respondent

Procedural Posture

Appeal / High Court of Australia Appeal From the Supreme Court of New South Wales (full Court)

Legal Issues

  1. 1 Whether a mortgagee under a registered Real Property Act mortgage containing an attornment clause can lawfully distrain upon goods of a stranger (the mortgagor's wife) found on the mortgaged premises
  2. 2 Whether section 60 of the Real Property Act 1900 (N.S.W.) justifies such distraint

Ratio Decidendi

A mortgagee under a registered Real Property Act mortgage, containing only an attornment clause, does not acquire a reversion or right of possession sufficient to support distress for rent against the goods of a stranger found on the mortgaged premises; the estoppel created operates only as between the mortgagor and mortgagee, and does not bind third parties not privy to the estoppel.

Court Disposition

Appeal allowed

Orders

  • Order of the Full Court discharged.
  • Order that the first question in the special case be answered 'No'.