Robert Ian Mitchelson v Carolyn Eva Mitchelson [1979] FCA 48

Robert Ian Mitchelson v Carolyn Eva Mitchelson [1979] FCA 48

The applicant had no reasonable prospect of success on the proposed new ground of appeal because the stapling of the deed was not a material alteration affecting legal obligations, was done by Titles Office staff to facilitate registration, and did not void the mortgage. Further, the alleged damage from caveats was suffered before any alleged alteration and the lodging of the caveats was proper.

Jurisdiction
Australia
Judgment Date
21 May 1979
Procedural Posture
Appeal / Interlocutory Application to Add New Ground of Appeal
Outcome
Application to amend notice of appeal dismissed
Legal Topics
['amendment of Grounds of Appeal' 'material Alteration of Deed' 'mortgage Registration' 'lodgement of Caveats' 'counter Claim Under Bankruptcy Act']
['civil Procedure' 'bankruptcy' 'property Law'] ['amendment of Grounds of Appeal' 'material Alteration of Deed' 'mortgage Registration' 'lodgement of Caveats' 'counter Claim Under Bankruptcy Act']

Case Brief

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Procedural Posture

Appeal / Interlocutory Application to Add New Ground of Appeal

Legal Issues

  1. 1 ['Whether leave should be granted to amend the notice of appeal to include a new ground based on fresh evidence' 'Whether the stapling of the deed of settlement to the mortgage rendered the mortgage void due to material alteration' 'Whether the respondent wrongfully lodged caveats and whether any damage flowed from this']

Ratio Decidendi

The applicant had no reasonable prospect of success on the proposed new ground of appeal because the stapling of the deed was not a material alteration affecting legal obligations, was done by Titles Office staff to facilitate registration, and did not void the mortgage. Further, the alleged damage from caveats was suffered before any alleged alteration and the lodging of the caveats was proper.

Court Disposition

Application to amend notice of appeal dismissed

Orders

  • ['The summons be dismissed.' 'The costs of the summons be paid by the appellant.' 'All reserved costs of this action be paid by the appellant.']