High Court refuses to consider a mortgagee's duties on sale of mortgaged land

On 25 August 2011, I wrote a blog about the Victorian Court of Appeal decision in MBF Investments Pty Ltd v Nolan [2011] VSCA 114.

As I noted, the Court clarified the application of s77(1) of the Transfer of Land Act 1958.

In summary, the Court of Appeal found that a mortgagee must act must act fairly towards the mortgagor, and in a way that does not unfairly prejudice the mortgagor when exercising its power of sale. However, a mortgagee is not required to place the interests of the mortgagor above the interests of the mortgagee in recovering the debt.

The borrower in that case, Mr Nolan, applied to the High Court for special leave to appeal the Court of Appeal’s decision. Late last year, the High Court refused special leave to Mr Nolan.

As a result of the High Court's refusal, the law in Victoria about a mortgagee's duty to a borrower upon the sale of land under section 77 of the Transfer of Land Act 1958 is as set out by the Court of Appeal.

W G Stark 
Hayden Starke Chambers