Trusted by the judiciary, government lawyers, prosecutors, and many leading counsel. Click here to request a subscription.
Trusted by the judiciary, government lawyers, prosecutors, and many leading counsel.
Click here to request a subscription.
Bank’s cause of action to demand repossession of mortgaged property did not accrue until demand for payment and possession had been made
|
or click here to request site subscription to search and view all judgments |
Court of Appeal dismisses appeal brought by partner of now deceased mortgagor in default against High Court orders granting a bank as mortgagee possession of a principal private residence, on the grounds that: the High Court was correct: (1) in its interpretation of when the bank's cause of action accrued; and (2) in finding that the appellant was not a 'mortgagor' for the purposes of deriving title of the property, and the plain meaning of the mortgage clauses operated to grant the mortgagee a cause of action against the borrower only when a demand for repayment had been made and defaulted on, such that on the facts of the case any cause of action against the deceased was not pending on the date of his death, nor was it one which survived against his estate for the appellant or another's benefit.
Appeal against order for possession granted by High Court (Costello J.) regarding principal private residence - whether proceedings ought to have been brought in Circuit Court - whether proceedings statute-barred - issues before High Court - whether bank entitled to sue appellant as executrix when no grant of probate taken out - whether proceedings statute-barred - finding that appellant had intermeddled with estate and held herself out as executrix - purported renunciation of office invalid - finding of executor de son tort not appealed - whether proceedings should have been brought before Circuit Court dependent on appellant being a 'mortgagor' - finding for statute purposes that default triggers right to demand payment - principal sum secured became due when demanded - finding that cause of action didn't accrue until demand for payment and possession made - assertion of being a personal representative of mortgagor - personal representative can only derive title to mortgaged property on taking out a grant of representation - natural and ordinary meaning of 'mortgagor' - mortgage clauses - definition of 'event of default' - illogical for mortgagee to have immediately enforceable right to possession and payment on execution of mortgage - contra proferentum rule - mortgage contract calls for a demand before action - cause of action not pending at date of death of mortgagor or one that survived against estate - claim not statute-barred - appeal dismissed
Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.
