Money, B.A.L.V. v Westpac Banking Corporation & Ors [1988] FCA 184

Money, B.A.L.V. v Westpac Banking Corporation & Ors [1988] FCA 184

The Bank engaged in misleading and deceptive conduct under s.52 of the Trade Practices Act by presenting a mortgage for signature in circumstances where both parties proceeded on a common assumption that liability was limited to $35,000, when in fact the mortgage was unlimited. The applicant's liability should be limited to $35,000 plus interest from demand, and further relief is to be determined.

Parties
Applicant / Cross Respondent: Brian Alexander Langtree Venn Money; First Respondent / Cross Claimant: Westpac Banking Corporation; Second Respondent: Suzanne Finucane Money
Jurisdiction
Australia
Judgment Date
28 March 1988
Procedural Posture
Mortgage/credit/trade Practices Dispute / Judgment After Trial, Orders for Further Submissions as to Form
Outcome
Liability of the applicant to the Bank under the mortgage limited to $35,000 plus interest from demand, with additional small sums expressly authorised by the applicant; form of orders to be settled after further submissions.
Legal Topics
Misleading and Deceptive Conduct, Banker and Customer, Mortgage, Joint Tenancy, Rectification, Non Est Factum, Severance of Joint Tenancy
Trade Practices Property Law Contracts Misleading and Deceptive Conduct Banker and Customer Mortgage Joint Tenancy Rectification +2 more

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Parties

Brian Alexander Langtree Venn Money

Applicant / Cross Respondent

Westpac Banking Corporation

First Respondent / Cross Claimant

Suzanne Finucane Money

Second Respondent

Procedural Posture

Mortgage/credit/trade Practices Dispute / Judgment After Trial, Orders for Further Submissions as to Form

Legal Issues

  1. 1 Whether the Bank engaged in misleading or deceptive conduct contrary to s.52 Trade Practices Act 1974 in obtaining the applicant’s execution of an unlimited mortgage
  2. 2 Whether the applicant's liability under the mortgage should be limited to $35,000 plus interest
  3. 3 Whether there was non est factum, mistake or ground for rectification

Ratio Decidendi

The Bank engaged in misleading and deceptive conduct under s.52 of the Trade Practices Act by presenting a mortgage for signature in circumstances where both parties proceeded on a common assumption that liability was limited to $35,000, when in fact the mortgage was unlimited. The applicant's liability should be limited to $35,000 plus interest from demand, and further relief is to be determined.

Court Disposition

Liability of the applicant to the Bank under the mortgage limited to $35,000 plus interest from demand, with additional small sums expressly authorised by the applicant; form of orders to be settled after further submissions.

Orders

  • Application adjourned for submissions as to the forms of orders
  • House to be sold and proceeds applied to liabilities as between Mr and Mrs Money and to the Bank, with limitation of Mr Money's liability as indicated