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

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