By James Daniel, Founder and Principal on 21/06/2022 – [SOURCE]
Update: on 15 December 2022, an Application for Special Leave to appeal to the High Court was refused with costs
Background
Two distinct points arose in the matter of 11 Oonoonba Road Pty Ltd v ACP Properties (Townsville) Pty Ltd [2022] QCA 87.
First: Suing for a monetary limit is an abandonment of any excess, if no steps are taken to seek a claim beyond the limit.
Second: A mortgage that is registered and subsequently released, without discharging the whole of the debt will be considered a ‘subsequent mortgage’ under s88(1) of the Property Law Act as the section is not limited to registered mortgages.
Key Takeaway: (1) when suing for a debt that continues to accrue, such as interest on a loan, ensure that the whole debt remains within the monetary limit throughout the proceeding. Otherwise, seek that the matter be moved to a higher court; and (2) ensure to account for equitable mortgages and unregistered charges on the land when distributing proceeds of sale as mortgagee exercising a power of sale.
