Reconsidering the scope of the equitable mortgage arising from deposit of title documents

Hepburn, Samantha 2006, Reconsidering the scope of the equitable mortgage arising from deposit of title documents, Australian law journal, vol. 80, no. 2, pp. 121-130.

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Title Reconsidering the scope of the equitable mortgage arising from deposit of title documents
Author(s) Hepburn, SamanthaORCID iD for Hepburn, Samantha
Journal name Australian law journal
Volume number 80
Issue number 2
Start page 121
End page 130
Total pages 10
Publisher Lawbook Co
Place of publication Sydney, N.S.W.
Publication date 2006-02-02
ISSN 0004-9611
Summary This article examines the underlying fairness of applying equitable security presumptions to the deposit of title documents belonging to third parties. It argues that within such transactions, the focus of the equitable jurisdiction must be upon the intention of the owner of the title documents rather than presumptions arising from the fact of the deposit. It suggests that there is no logic in applying equitable presumptions, founded on the principles of part performance, to infer a security intention in transactions involving third party title documents. The fact that the parties to a loan advance may have intended to create a mortgage between themselves does not mean that the third party owner of the title documents also intended to create a mortgage. In third party transactions, the objectives of the equity jurisdiction are best achieved through a comprehensive assessment of the intention of all parties and the abolition of presumptions based upon the bare fact of title deposit.
Language eng
Field of Research 180124 Property Law (excl Intellectual Property Law)
Socio Economic Objective 0 Not Applicable
HERDC Research category C1 Refereed article in a scholarly journal
Copyright notice ©2006, Lawbook Co.
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Document type: Journal Article
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