Queensland Premier Mines Pty Ltd v French [2007] HCA 53

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GUMMOW, KIRBY, HAYNE, HEYDON, CRENNAN AND KIEFEL JJ

QUEENSLAND PREMIER MINES PTY LTD & ORS APPELLANTS

AND

WALTER MURDOCH FRENCH RESPONDENT

Queensland Premier Mines Pty Ltd v French [2007] HCA 53

15 November 2007

M54/2007

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of Victoria

Representation

C L Pannam QC with M S Goldblatt for the appellant (instructed by Oakley Thompson & Co)

B W Walker SC for the respondent with P J Bick QC for the respondent (instructed by Norton Gledhill)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Queensland Premier Mines Pty Ltd v French

Real property – Torrens title – Transfer of mortgage – Separate mortgage and loan agreements – Debts or obligations secured by mortgage – Whether s 62 of the Land Title Act 1994 (Q) ("the Act") operated to vest in transferee of the mortgage the right to recover monies under the loan agreement – Relevance of the historical and legislative purpose of s 62 of the Act – Relevance of connection of the loan to the mortgage – Whether a right to recover monies under the loan agreement was a right "to recover a debt or enforce a liability under the mortgage" within the meaning of s 62(4) of the Act.

Statutes – Interpretation – Meaning of "under the mortgage" in s 62 of the Act – Whether a right to recover a debt or enforce a liability under the mortgage includes a right to recover a debt or enforce a liability secured by the mortgage.

Words and phrases – "under the mortgage".

Land Title Act 1994 (Q), s 62.

1. GLEESON CJ. I have had the advantage of reading in draft form the reasons for judgment of Kiefel J. I agree with the order proposed by her Honour, and with her reasons for that order. 2. GUMMOW J. The appeal should be dismissed with costs. I agree with the reasons of Kiefel J. 3. KIRBY J. The problem presented by this appeal is not without difficulty. It arises in an appeal from a judgment of the Court of Appeal of the Supreme Court of Victoria[1]. That judgment reversed the orders made by the primary judge in the Commercial and Equity Division of the Supreme Court (Dodds-Streeton J)[2]. 4. The point in issue derives from what the primary judge described as "fundamentally different constructions"[3] of s 62 of the Land Title Act 1994 (Q) ("the Act"). That section appears in substantially the same form in the Torrens title legislation in force in all of the States and Territories of Australia[4]. 5. It was common ground between the parties that no decision of this Court, or of any other Australian appellate court, authoritatively decides the question presented by the appeal[5]. Given the provenance of the disputed provision, its long history and the multitude of cases on so many other aspects of the Torrens title legislation, the absence of governing authority is curious. Especially so because of the many cases that must arise each year involving the registration of an instrument of transfer affecting rights in relation to a mortgage of Torrens title land, executed against the background of collateral loan agreements.