Simpson v Forrester [1973] HCA 4

High Court of Australia Barwick C.J. Gibbs and Stephen JJ. Simpson v Forrester [1973] HCA 4

ORDER Appeal allowed. Order that the sale effected by the sheriff to the appellant on 22nd March 1971 be set aside unless within 21 days of the date hereof the first respondent elects to affirm such sale by notice given within that time to the appellant and to the sheriff. If the first respondent elects as aforesaid to affirm such sale —

1. Order that the first declaration of the Supreme Court be set aside;

2. Declare that the appellant is entitled to $19,425.15 paid into Court with accretions if any;

3. Declare that there is no sum due by the first respondent to the appellant either under the memorandum of mortgage or the judgment obtained in the action at law.

If the first respondent does not elect as aforesaid to affirm such sale —

1. Order that the two declarations of the Supreme Court be set aside;

2. Grant liberty to apply to the Supreme Court for any orders or directions necessary to give effect to the order setting aside the sale.

In either event, set aside orders of the Supreme Court, except order that the sum of $34 be paid out to the solicitors for the appellant. Liberty to apply to the Supreme Court as to the latter order. Order that the first respondent pay the appellant's costs of the action and the appeal to be taxed.

Cur. adv. vult.

The following written judgments were delivered:—

1973, March 9 Barwick C.J.

On 4th December 1969 Peter John Forrester (the respondent) executed a memorandum of mortgage in favour of the appellant, Lawrence Alexander Simpson, over a Crown leasehold property in the State of Queensland. The respondent's title to the land was held under The Land Acts, 1962 to 1970 of that State (The Land Acts). Section 275 provides for the mortgaging of land to which the title is held under those Acts. The mortgage was given to secure the sum of $55,165 which was the outstanding balance of the price paid by the respondent when purchasing the property from the appellant some five months earlier. The purchase price for the leasehold was $74,910. The mortgage was duly registered under the provisions of The Land Acts, see ss. 275, 276, 279.