Groongal Pastoral Company Limited (In Liquidation) v Falkiner [1924] HCA 54

OF AUSTRALIA. 157

i # My ti lo (HIGH COURT OF AUSTRALIA.) , GROONGAL PASTORAL COMPANY LIMITED | ; (IN LIQUIDATION) — a EROS " PLAINTIFF, uy AND FALKINER . : f 5 a; " x . ReEsPonDENT. ia Derenpant,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Mortgage—Construction—Payment of interest "free from income tax,""—Discharge— H.C. or A. Statutory effect—Discharge of personal obligation of mortgagor—Real Property 1924. Act 1900 (N.S.W.) (No. 25 of 1900), secs. 36, 57, 65, 103, Sched. 9. ae

Sypyey, By « memorandum of mortgage under the Real Property Act 1900 (NSW.) 7) a1,

% the mortgagor covenanted to repay, in Sydney, the principal sum secured Ayg. 1, 4;

"free from exchange and all other deductions," by equal yearly instalments, Dec. 15.

F and to pay to the mortgagee, in Sydney, interest at a certain rate by equal 'aun iti. half-yearly payments "free from exchange, income tax and all other Gavan Du

a tions." and Starke J3.

Held, upon the construction of the mortgage, that the mortgagor was bound to indemnify the mortgagee, if necessary, by reimbursement, in respect of any diminution of the interest by reason of any income tax the mortgagee might have to pay in respect of the receipt thereof, so as to leave the interest 'at the rate specified clear in the hands of the mortgagee.

'The mortgage, which was given to a company, was duly registered. Subsequently a discharge was endorsed on the mortgage acknowledging the receipt of the amount of the mortgage debt "being in full satisfaction and discharge of the within obligation," and executed by the mortgagee under its seal. The discharge was handed, with the certificate of title of the mortgaged property, to the mortgagor's solicitors, who procured its due registration.

H.C. or A.

1924. GROONGAL

PasTorat Co. Lrp.

(rx Ligutpa-

TION) v FALKINER.