Farrow Mortgage Services Pty Ltd v Raxgold Pty Ltd [1991] QSC 327

TRANSCRIPT OF PROCEEDINGS State Reporting Bureau, 4th Floor, The Law Courts, George Street, BRISBANE. 0. 4000 Tel. (07) 227.4360 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION COOPER J No 80 of 1991 FARROW MORTGAGE SERVICES PTY LTD and RAXGOLD PTY LTD TOWNS VILLE .. DATE 17/10/91 2.45 P.M. 1 Plaintiff Defendant -- 1 of 5 -- ( 1 1171091 jIS HONOUR: o Order 18 ORDER This is an application for judgment pursuant of the Rules of Court whereby the plaintiff 10 eeks an order for recovery of possession of certain land escribed as Lot 2 on Registered Plan No. 22817 County of ardwell Parish of Rockingham being the whole of land ~ontained in Certificate of Title N743247. The plaintiff ldvanced to the defendant certain moneys that were secured fy a Registered Bill of Mortgage dated 18 November 1988. !he subject land was part of the security given under the 20 said Bill of Mortgage. On the material before me there has ~een a default on the part of the defendant in paying lnstalments due and owing under the mortgage. That has not ieen a matter in dispute before me. Under the terms of the tortgage the plaintiff is prime facie entitled to possession 30 r the land. It is argued by counsel on behalf of the defendant that the lefendant has a defence or should be entitled to be given I leave to defend to agitate two issues. The first is a 40 !ubmission that the mortgage was varied so as to provide for !artial release in terms of partial payments. The second tatter is to allege that the mortgage was varied by greement between an officer of the plaintiff and the ,efendant on the occasion of making a substantial payment to 50 educe the capital sum secured. In support of the grounds 60 f defence, an affidavit of Ronald Francis Blanc sworn on 7 October 1991 is relied upon. In the affidavit Mr Blanc eposes that at the time the plaintiff agreed to make the oan secured by the mortgage the conditions of such loan Govt. Printer, Old. 2 10 20 30 40 50 60 -- 2 of 5 -- ·1 1 7 10 91 ORDER tere contained in a letter from the plaintiff to the &efendant. He deposes that the terms of the letter required tndorsement of acceptance and he says that prior to lcceptance various amendments were made to the terms and 1onditions including a stipulation for progressive release 10 I If securities on the reduction of the balance of the Jrincipal. He says that in making the subsequent advance lhe plaintiff accepted the counter offer contained in the jmended letter of acceptance. By that, I take it to mean that the original letter of acceptance tendered by the 20 I ~laintiff was amended by the defendant and sent back in its ~mended form. He does not have a copy of the letter. The I 0ifficulty with that paragraph of Mr Blanc's affidavit is I that it asserts an offer in particular terms which may or 1 1ay not have been accepted by the plaintiff. 30 The Bill of Mortgage makes provision in clause 39.1.2 for lartial release of securities, but such release is a matter !urely at the discretion of the mortgagee. 40 50 60 the material before me, the Bill of Mortgage executed as it is by the defendant is subsequent to the date of the l11eged variation of an offer of a loan forwarded by the tefendant to the plaintiff, and when one reads the mortgage nd reads clause 41.1.4, the "All Representations Clause", here is, in my view, no room to argue a collateral greement which is inconsistent with the terms of the ortgage itself nor is it possible to argue a variation in elation to the original transaction because the alleged ariation occurs prior to the execution of the mortgage Grwt Printer. Old. 3 10 20 30 40 50 60 -- 3 of 5 -- ( 10 Jtl71091 ORDER ocument itself. There then remains the question of whether r not when the $100,000 was paid there was a variation of he agreement. The payment was made in circumstances where he defendant was indebted to the plaintiff and was required y the terms of the mortgage to pay the sum secured by the 1 ortgage. The payment of the $100,000 was clearly the ferformance of an existing obligation under the Bill of tortgage. It did not amount to a separate and new rbligation undertaken by the defendant such as to constitute ·~onsideration to support a variation in the terms contended 20 I for. In the circumstances, I am not satisfied that there is 30 40 50 60 bn the material a serious question to be tried and that some 1easonable ground of defence either in fact or law has been I bade out. Govt. Printer, Qld. 4 10 20 30 40 50 60 -- 4 of 5 -- ( 10 20 30 40 so 60 71091 ORDER IS HONOUR: Order that the above order be stayed for a eriod of seven days to allow the defendant to discharge the um secured by the said bill of mortgage or to compound or rovide for the ·:,aid sum to the satisfaction of the laintiff. So you have got seven days to come to some greement or pay it out otherwise the order will have ffect. Otherwise it is order as per initial draft placed ith the papers. Govt. Printer, Old. 5 10 20 30 40 50 60 -- 5 of 5 --