Parwan Investments Pty Ltd (recs apptd) v Hooper

[2024] VSCA 86

Victorian Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Equity
2. › Specific performance
3. › Contract of sale of land
4. › Land subject to registered mortgage
5. › Subdivision required before performance
6. › Whether real prospect of order for specific performance
7. › Mortgagee does not consent to sale
8. › Purchase price insufficient to discharge mortgage
9. › Mortgagor unable to compel discharge
10. › Hardship to third party mortgagee
11. › Transfer of Land Act 1958 (Vic), ss 40(1), 42, 74(2), 77, 78(1), 81(1)
12. › Property Law Act 1958 (Vic), ss 86, 101(1)(c), 102, 109(1)
1. Civil Procedure
2. › Summary judgment
3. › Real prospect of success test
4. › Claim for specific performance of contract of sale of land
5. › Whether claim has real prospect of success
6. › Civil Procedure Act 2010 (Vic), ss 62, 63

Quick Take

Where a mortgagee does not consent to the sale of part of mortgaged land, the purchase price is insufficient to discharge the mortgage, and the mortgagor cannot compel a partial discharge, specific performance will not be available to the purchaser — even if the overall property value exceeds the mortgage debt.