Justice vs. Certainty: International Law and the Mortgagee's Power of Sale

Australian Property Law Journal, Vol. 18, p. 145, 2010

Monash University Faculty of Law Legal Studies Research Paper No. 2010/47

Posted: 11 Oct 2011

See all articles by Greg Taylor

Greg Taylor

University of Adelaide - School of Law; University of Marburg; RMIT University - Graduate School of Business and Law

Michael Ziemer

Monash University

Date Written: 2009

Abstract

Recently international law principles relating to the human right to occupy a home have been employed in the Supreme Court of Victoria in order to hold invalid a mortgagee's sale. This remarkable development is analysed by this article. While it is certainly novel to see the statutory provisions on mortgagees' sales supplemented by human rights provisions, it is concluded here that the decision was both in accordance with the statute and just. Nevertheless in a later case decided by the same judge the court concluded, perhaps with some exaggeration, that the circumstances permitting the application of international law were 'unique' because the mortgagee's conduct was particularly bad. This article explains the difference between those two cases and considers whether principles of international law have a future in mortgagees' sales, both within and outside Victoria. It is concluded that the principle permitting reference to international law is correct but likely to be of quite restricted application.

Keywords: international law, human rights, right to occupy a home, mortgagee sale, Victoria

JEL Classification: K00, K10, K11, K19, K20, K29, K30, K33, K39, K40, K49

Suggested Citation

Taylor, Greg and Ziemer, Michael, Justice vs. Certainty: International Law and the Mortgagee's Power of Sale (2009). Australian Property Law Journal, Vol. 18, p. 145, 2010, Monash University Faculty of Law Legal Studies Research Paper No. 2010/47, Available at SSRN: https://ssrn.com/abstract=1941968

Greg Taylor (Contact Author)

University of Adelaide - School of Law ( email )

Ligertwood Building
Adelaide 5005, South Australia SA 5005
Australia

University of Marburg ( email )

Universitätsstrasse 24
Marburg, D-35032
Germany

RMIT University - Graduate School of Business and Law ( email )

Melbourne
Australia

Michael Ziemer

Monash University ( email )

23 Innovation Walk
Wellington Road
Clayton, Victoria 3800
Australia

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