Sandgate Corporation Pty Ltd (In Liq) & Ors v Ionnou Nominees Pty Ltd & Ors

(2000) 22 WAR 172; [2000] WASC 91

Supreme Court of Western Australia

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Interrogate

Catchwords

1. Land Law
2. › Torrens system
3. › Mortgages
4. › Sale of mortgaged property
5. › Whether court has power to order sale under Property Law Act 1969 (WA), s 55(2)
6. › Whether section applies to Torrens system land
7. › Inconsistency with Transfer of Land Act 1893 (WA)
8. › Property Law Act 1969 (WA), s 6(a), s 55(2)
9. › Transfer of Land Act 1893 (WA), ss 106(1), 111, 113, 121, 122, 123
1. Land Law
2. › Torrens system
3. › Mortgages
4. › Right of redemption
5. › Whether concept of right of redemption applies to Torrens system mortgages
6. › Nature of mortgagor's interest under Transfer of Land Act 1893 (WA), s 106(1)
1. Insolvency
2. › Liquidator's powers
3. › Sale of mortgaged property
4. › Competing claims to sale proceeds
5. › Whether court should exercise discretion to order sale
6. › Wasting asset
7. › Property Law Act 1969 (WA), s 55(2)
1. Practice and Procedure
2. › Interpleader
3. › Whether liquidator of registered proprietor within O 17 r 1(a)(i)
4. › Dispute as to entitlement to sale proceeds not a dispute as to liability to yield up possession
5. › Rules of the Supreme Court 1971 (WA), O 17

Quick Take

Section 55(2) of the Property Law Act 1969 (WA) empowers the Supreme Court to order the sale of land mortgaged under the Transfer of Land Act 1893 (WA) at the request of a person interested in the right of redemption, provided the sale will not defeat the mortgagee's right to foreclosure. The references in s 55(2) to 'action for redemption' and 'person interested in the right of redemption' are not inconsistent with the Transfer of Land Act, although the reference to 'action for foreclosure' is. The interpleader provisions of O 17 are not available where the real dispute concerns the priority of security interests rather than a liability to yield up possession of land.