Hammond v JP Morgan Trust Australia Limited

[2012] NSWCA 261

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Joinder of parties
3. › Necessary party
4. › Non-party claiming equitable interest in property
5. › Whether non-party to appeal proceedings is necessary party and ought to be joined
6. › Whether orders directly affect rights of non-party
1. Real Property
2. › Torrens system
3. › Priority of interests
4. › Registered mortgage
5. › Whether equitable interest has priority over first ranking registered mortgage
1. Equity
2. › Resulting trust
3. › Contribution to purchase price
4. › Whether resulting trust arises where husband contributes to purchase of property registered in wife's name

Quick Take

A person claiming an equitable interest in property (such as a resulting trust) that is subordinate to a first registered mortgage is not a necessary party to possession proceedings brought by the mortgagee, because the enforcement of the mortgage does not directly affect the equitable interest. The equitable interest holder's claim is a matter between that person and the registered proprietor, and can be brought separately at any time.