Fisher and Lightwood's law of mortgage

2093 Pages·2014·11.515 MB·English

by  Clyde E. Croft, Peter Wolstenholme Young, Edward Lawson Griffin Tyler

Fisher and Lightwood’s
Law of Mortgage
Third Australian Edition
E L G Tyler
MA (Oxon)
Barrister, Lincoln’s Inn and Hong Kong
Legal Practitioner of the Supreme Court of Tasmania and the
High Court and Federal Courts of Australia
formerly a District Judge, Hong Kong, and Professor of Law in the
University of Hong Kong and the City University of Hong Kong
Senior Assistant Law Officer, Commercial III (Companies Ordinance
Rewrite)
Department of Justice, HK SARG
The Hon P W Young AO QC
LLB (Syd)
A former Chief Judge in Equity, Supreme Court of New South Wales formerly
Queens Counsel for New South Wales, Victoria, the Australian Capital
Territory, the Northern Territory, Papua New Guinea and from time to time
admitted as Senior Counsel in Fiji
Acting Judge and Acting Judge of Appeal, Supreme Court of New South
Wales
The Hon C E Croft
BEc LLM (Monash), PhD(Cambridge), LFACICA, LFIAMA,
JFAMINZ, FCIArb
A Judge of the Supreme Court of Victoria
Adjunct Professor of Law, Deakin University
LexisNexis Butterworths
Australia
2014
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National Library of Australia Cataloguing-in-Publication entry
Author: Tyler, E. L. G. (Edward Lawson Griffin).
Title: Fisher & Lightwood’s law of mortgage.
Edition: 3rd edition.
ISBN: 9780409332599 (pbk).
9780409332605 (ebk).
Notes: Includes index.
Subjects: Mortgages — Australia.
Young, P. W. (Peter Wolstenholme). Croft,
Other Authors/Contributors:
Clyde.
Dewey Number: 346.9404364
© 2014 Reed International Books Australia Pty Limited trading as
LexisNexis.
First edition 1995; Second edition 2005.
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Preface
Up until recently, there were few Australian textbooks covering the law of
mortgages. Because of this, there has been more frequent recourse to the
standard English works on the subject than is the case with other aspects of
the law. When Britain became more and more immersed in the European
Union, it seemed probable that Australians would be less and less be able to
rely on the latest edition of English textbooks without making significant
local adjustments. It was this that caused the authors to approach the
publishers with the suggestion of an Australian edition of this standard work
As things developed, the Europeans did not agree on a standard form of
mortgage and English law still exists in its traditional form. However, the
exercise of “Australianizing” the book has still proved that to be the right
decision. Even apart from the Common Market, there was the additional
problem for Australian lawyers that, for obvious reasons, English works do
not deal with the Torrens System. English common law concepts with respect
to mortgages are, however, essential to an understanding of that System.
Fisher on Mortgages first saw the light of day in 1856. The first four
editions were written by the eminent Wiliiam Richard Fisher. A concise
biography of Fisher appears in the 13th English edition at pp viiff. The fifth
and sixth under the editorship of the famous Sir Arthur Underhill, and the
seventh, in 1931, under the respected J M Lightwood. That edition (with a
slim supplement issued after the War) lasted until 1969, when Ted Tyler
produced the eighth edition. Ted has also edited the ninth and tenth editions.
The eleventh English edition was completely rewritten by members of Falcon
Chambers, London, and they have also produced the 12th and 13th English
editions.
This third Australian edition has built on the work of the previous editions
and has taken into account both Australian developments and also
developments in England including those noted in the 13th English edition. It
is mutually beneficial that under the one publisher, the Australian and
English editions have been able to feed off each other.
The principal adjustment in this edition has been to accommodate the
considerable changes made to personal property securities by the Personal
Property Securities Act, 2009 (Cth) (PPSA). However, there has also been a
steady flow of cases from the superior courts and a great increase in cases
dealing with forgeries. PPSA seems to have complicated rather than
simplified work in the area of securities over personally. There are
considerable problems as to its reach and questions as to how Australian
Courts will apply it. We thought it advisable in this edition both to expound
PPSA, but also retain the old law which will still apply to closed transactions
for some years to come.
We have worked very closely together despite the distance that separated
us. Professor Ted Tyler produced his manuscript in Hong Kong. However,
Justices Peter Young and Clyde Croft had to prepare their material whilst
maintaining their normal output of curial decisions.
Chapter 5 on PPSA was drafted by Ms Clare Langford, the NSW Supreme
Court Equity Researcher. Chapter 41 on Taxation Considerations has been
completely rewritten and we give our special thanks to Mr Michael Flynn, of
the Victorian Bar, who extensively rewrote, revised and expanded this
chapter.
Our thanks go to two groups of people. First, to our own families and
personal staff, especially Pam Young, Krystyna Croft, second to those at
LexisNexis Butterworths who have made the work such a successful
production, particularly Hayley Moore.
Ted Tyler
Peter Young
Clyde Croft
October 2013
Table of Cases
References are to paragraphs
1253174 Ontario Inc v Tarion Warranty Corp (2010) 17 PPSAC (3d) 373 .…
5.37
518718 Alberta Ltd v Canadian Forest Products Ltd [1993] 3 WWR 672 .…
5.121
674921 BC Ltd v Advanced Wing Technologies Corp (2006) 9 PPSAC (3d)
43; 263 DLR (4th) 290 .… 5.38
695113 Ontario Ltd v Commissioner of Stamps (1990) 53 SASR 274; 20
ATR 1807 .… 9.24
888 Casino & Tavern Pty Ltd v Hurlfobe Pty Ltd (1997) 8 BPR 15,505 .…
1.23
977380 Ontario Inc v Roy’s Towing Co (1997) 13 PPSAC (2d) 201 .… 5.40
994814 Ontario Inc v RSL Canada Inc and En-Plas Inc (2005) 14 CBR (5th)
134 .… 5.15, 5.38
994814 Ontario Inc v RSL Canada Inc (2006) 20 CBR (5th) 163 .… 5.30
A
A and M Records Inc v Darakdjian [1975] 3 All ER 983; [1975] 1 WLR
1610 .… 7.5
A Tomlinson (Hauliers) v Hepburn [1966] AC 451 .… 3.20
A v B1 (No 2) (2012) 271 FLR 122 .… 1.55
Abacus (CI) Ltd v Sheikh Fahad (13 June 2003, seemingly unreported) .…
42.22
Abbey National Building Society v Cann [1991] 1 AC 56; [1990] 1 All ER
1085 .… 5.79, 12.21, 24.1
Abbey National Building Society v Maybeech Ltd [1985] Ch 190 .… 37.10
Abbott v Stratton (1846) 3 Jo & Lat .… 1.34, 1.40, 7.8, 24.49
Abenheim, Re; Ex parte Abenheim (1913) 109 LT 219 .… 6.22
Aberamain Ironworks v Wickens (1868) LR 4 Ch App 101 .… 2.15
Aberdeen v Chitty (1839) 3 Y & C Ex 379; 160 ER 749 .… 16.15
Abergavenny’s Case (1607) 6 Co Rep 78b; 77 ER 373 .… 11.4
Abigail v Lapin (1934) 51 CLR 58 .… 1.15, 4.22, 4.24, 4.27, 28.7, 28.14
Abigail v Lapin [1934] AC 491; [1934] All ER Rep 720 .… 4.23, 28.7,
28.11, 28.12, 28.13, 28.16
Abington v Green (1866) 14 WR 852 .… 16.38
Abney v Wordsworth (1701) 9 Sim 317n; 59 ER 380 .… 22.35
Abram v Bank of New Zealand [1996] ATPR 41-507 .… 13.2, 13.35, 19.2,
38.5
Accent Leasing & Sales Ltd v Babic (2007) 12 PPSAC (3d) 1 .… 5.19
Access Advertising Management Inc v Servex Computers Inc (1993) 15 OR
(3d) 635 .… 5.1, 5.35
Access Cash International Inc v Elliot Lake & North Shore Corp for
Business Development 1 PPSAC (3d) 209 (2000) .… 5.23
Accles Ltd, Re; Hodgson v Accles Ltd (1902) 51 WR 57 .… 8.5
ACN 077 991 890 v National Australia Bank (2007) 13 BPR 24,299 .…
30.9, 30.11
Across Australia Finance v Kalls (2008) 14 BPR 26,265 .… 30.9, 30.10,
30.12, 30.17
Acton v Acton (1704) Prec Ch 237; 24 ER 115 .… 1.27
Actors and Announcers Equity Association of Australia v Fontana Films Pty
Ltd (1982) 150 CLR 169 .… 5.25
Adam v Newbigging (1888) 13 App Cas 308 .… 6.22