Burness v Hill

[2019] VSCA 94

Victorian Court of Appeal

Built by Barristers,
For Australian Law.

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Interrogate

Catchwords

1. Equity
2. › Marshalling
3. › Mortgages
4. › Second mortgagee's right to be subrogated to first mortgagee's security
5. › Whether secured debt existed at time of sale of commonly mortgaged property
6. › Effect of subsequent consent judgment on pre-existing debt
7. › Whether merger in judgment retrospectively extinguishes debt
1. Equity
2. › Marshalling
3. › Mortgages
4. › Whether non-binding arrangement between debtor and first mortgagee as to order of sale defeats marshalling right
5. › Whether contractually enforceable obligation required
6. › National Crime Agency v Szepietowski [2014] AC 338
1. Contract
2. › Release
3. › Construction
4. › General words of release
5. › Whether marshalling claim released by settlement of earlier proceeding
6. › Whether subjective knowledge of releasor relevant
7. › Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112
1. Equity
2. › Anshun estoppel
3. › Abuse of process
4. › Whether unreasonable not to raise marshalling claim in earlier County Court proceeding
5. › Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
6. › UBS AG v Tyne (2018) 360 ALR 184

Quick Take

Practitioners advising second mortgagees should note that marshalling rights survive a consent judgment on the underlying debt and are not defeated by informal arrangements between the debtor and first mortgagee as to the order of sale; only a contractually binding obligation, binding estoppel, or statutory obligation will suffice.