Keogh v Registrar-General (NSW) [1918] HCA 23; (1918) 24 CLR 413 (25 April 1918)

HIGH COURT OF AUSTRALIA

Keogh Plaintiff, Appellant; and The Registrar-General of New South Wales and Others Defendants, Respondents.

H C of A

On appeal from the Supreme Court of New South Wales.

25 April 1918

Barton, Gavan Duffy and Rich JJ.

Knox K.C. (with him Weston), for the appellant.

Maughan (with him J. A. Browne), for the respondent Company.

S. A. Thompson, for the respondent Field, did not argue.

The following judgments were read:—

April 25

Barton J.

I think this case may be decided without any very long discussion on my part.

I will first deal with the point that the securities executed apart from the provisions of the Real Property Act—that is to say, what may be termed the common law mortgage indentures—do not include in the mortgaged lands the freeholds held under the Act as well as the conditionally purchased and conditionally leased lands mentioned. At the date of these mortgages all the station lands of "Warrana," including the last-mentioned freeholds, stood in the name of the respondent Company, some in the books of the Lands Titles Office and some in those of the Lands Office, according to their tenure, under the Real Property Act or the Crown Lands Acts. They were in the same position at the time when the injunction was sought. By the mortgage of 22nd November 1910 to Chapman and Higgins the plaintiff assured to the mortgagees "all those the freehold conditionally purchased and conditionally leased lands mentioned or referred to in the schedule ... and also all further or other conditionally purchased or conditionally leased lands which may at any time during the continuance of this security be held or applied for by the said mortgagor in virtue of the said conditionally purchased or conditionally leased lands or any of them which said lands are collectively known as the Warrana Station and are hereafter collectively referred to as the said station." The power of sale extended over "the said lands and premises or any part thereof." The schedule comprised categorically all the lands in the station, including the freeholds held under the provisions of the Real Property Act. It is to me quite clear that the last-mentioned lands are included in the mortgage. It is true that in this indenture the lands in the memorandum of mortgage of the same date between the same parties were referred to as "certain other lands" in the declaration that the two securities were collateral. But that is by no means sufficient to except the Real Property Act lands from the very specific words of the granting part and the schedule. Moreover the habendum included the whole of the lands under the term "the said station." This mortgage was assigned to the respondent Company on 31st December 1915, the day before the expiration of the mortgage term. The common law mortgage of the same 22nd November 1910 from the plaintiff to the respondent Company assured the lands subject to the first mortgage in similar terms, with the same collective description. It also granted by way of first mortgage the stock on the holding. The power of sale extended to "the said station and all lands forming part thereof," and of course to the stock. The schedule comprised categorically all the lands in the station, including the lands held under the provisions of the Real Property Act. There was in this deed, as in the other, a declaration that the memorandum of mortgage of even date was collateral with the mortgage now under description, but it referred to the lands covered by the memorandum as 42,307 acres of freehold land, and abstained from the use of the term "certain other lands." In this deed again the habendum used the term "the said station," which by the words of grant included all the schedule lands. I do not think there can be any doubt whatever that both these common law mortgages included, and were intended to include, the Real Property Act lands, and that they were made subject to the same power of sale as the other lands.

It is admitted by the statement of claim that the plaintiff made default, and, the lands under the Act being included in the indentures of mortgage and both mortgages being vested in the respondent Company, who held the legal estate, it seems to me that the respondent Company was entitled to sell under its power and to transfer to Field its whole estate. The notice to redeem dated 13th May 1916 appears to have been in proper form, and no question has been raised that the sale was at an undervalue. There is no contention that the sale was not carried out in due pursuance of the terms of the notice. The plaintiff himself appears to have had only an equitable and unregistered interest, but it was an interest that he could deal with if he so chose, and he has done so. There is no claim of fraud. He has really no interest entitling him to claim an injunction. The appellant has argued the question on the motion for an interlocutory injunction below. He has argued it again on appeal. He does not urge that its decision should be held over until the hearing, and it would not advantage the parties to hold it over. There are other questions raised by his statement of claim, which may be dealt with at the hearing, but these cannot be the subject of such a motion as the present. The only way in which the plaintiff could have prevented the sale was by a tender of the sum due.

The points raised under the Real Property Act do not appear to me to have any application under the circumstances.

I am of opinion therefore that the appeal must be dismissed with costs.

Gavan Duffy and Rich JJ.

This is a motion for an interlocutory injunction, but as the facts clearly raise a point of law which can be determined on the motion it is unnecessary to defer its decision until the hearing on the ground of balance of convenience. The only question which arises for determination is whether the powers of sale contained in the common law mortgages are effective to confer valid powers of sale over all the lands or are referable only to the lands under the old system of conveyancing. On 22nd November 1910 all the lands in question stood in the name of the defendant Company as absolute owners, whether as registered proprietors under the Real Property Act or as registered owners in the books of the Department of Lands. On that day the appellant, being the equitable owner of all these lands subject to the contractual obligation imposed on him by the agreement of 25th February 1909, executed the mortgages under consideration. There is nothing in the Real Property Act restricting the power of an equitable owner of lands under the Act to enter into a binding agreement with reference to such lands enforceable in equity. The question, then, is one of construction of the common law indentures. In our opinion they were intended to and do include all the lands comprising what is known as Warrana Station, and they contain a valid power of sale over such lands and an authority to defeat the appellant's equity of redemption in them. That power has been exercised, and the plaintiff has now no estate or interest either legal or equitable in any of such lands on which to found his motion.

We agree in the conclusion arrived at by Street J., and that this appeal should be dismissed with costs.

Appeal dismissed with costs.

Solicitors for the appellant, Vindin & Littlejohn for Hedderwick, Fookes & Alston, Melbourne.

Solicitors for the respondent Company and T. A. Field, Asher, Old & Jones.