High Court of Australia

Theodore v Mistford Pty Ltd [2005] HCA 45

221 CLR 612; 79 ALJR 1503; 219 ALR 296

1 Sep 2005

Case Number: B75/2004


Gleeson CJ, McHugh, Gummow, Callinan, Heydon JJ


Mortgages – Equitable mortgage by deposit of a certificate of title – Third party security – Contract provided for sale of business by respondents to third party guaranteed by appellant's son – Sale contract provided for deposit by guarantor with vendors' solicitors of instrument of mortgage of certain land owned by appellant together with duplicate certificate of title – Guarantor obtained appellant's authority to release duplicate certificate of title as security for purchase – Guarantor deposited duplicate certificate of title with vendors' solicitors four days prior to settlement – No insistence by vendors upon provision of instrument of mortgage – Whether equitable mortgage created by deposit of duplicate certificate of title – Whether duplicate certificate of title held by vendors' solicitors on account of purchaser or on account of vendor – Whether Land Title Act 1994 (Q), s 75 precludes creation of third party securities by way of deposit of a certificate of title – Whether deposit of a certificate of title must be made contemporaneously with the advance to be secured.

Land Title Act 1994 (Q) – s 75.

Property Law Act 1974 (Q) – ss 5, 11, 59.

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