MISTRONI v STEINDLBERGER AND ANOR [1992] NSWCA 159

MISTRONI v STEINDLBERGER AND ANOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, HANDLEY and SHELLER JJA

16 October 1992, 16 October 1992

[1992] NSWCA 159

MORTGAGE — TERMS — S93, CONVEYANCING ACT 1919.

Clarke JA This is an appeal from a decision given by Mr Acting Justice Needham on 6 March 1992. As a consequence of that decision the following orders were made:

"1. The clause fifthly in Mortgage dated 30 May 1986 and registered number W371001 is void as a penalty.

2. The amount due by the plaintiffs to the defendant under the Mortgage is $51,151.53.

3. In the events that have occurred the Mortgage between the cross-claimant as Mortgagee and the cross-defendants as Mortgagor and dated 30 May 1986 in respect to the property being the whole of the land contained in Volume 7830 Folio 165 incorporated the following terms:

(a) 'Firstly - the Mortgagor will pay to the Mortgagee the principal sum, or so much thereof as shall remain unpaid, on 29th day of March 2001."

(b) 'Fourthly - the Mortgagor shall pay principal and interest at the rate of fifteen and one half (15.5) per cent per annum by instalments of principal and interest of $1,076 per month. The first instalment is to be made on 30th day of June 1986 and each subsequent payment to be made on 30th day of each subsequent month."

THE COURT ORDERS THAT

4. The defendants pay damages to the plaintiffs in the sum of $2,734.80 and that the plaintiffs be entitled to the interest on the joint account referred to in orders made on 3 December 1991.

5. The defendant pay the costs of the plaintiffs in a sum to be agreed or as taxed as the case may be."

The dispute with which Mr Justice Needham dealt arose out of the mortgage which had been entered into between the parties on 30 May 1986. The respondent was the mortgagor and the appellant the mortgagee. The respondent borrowed the sum of $70,000 which was secured by this mortgage over property which the respondent had purchased. The title to the land was under the Real Property Act and the mortgage was registered under that Act. The first condition in the schedule of the mortgage read that the mortgagor will pay to the mortgagee the principal sum or so much thereof as shall remain unpaid on the twenty ninth day of May 2001.