Fisher, C.R. & Anor v. Westpac Banking Corporation Ltd & Ors [1994] FCA 926

Fisher, C.R. & Anor v. Westpac Banking Corporation Ltd & Ors [1994] FCA 926

The Fishers remained indebted to Rafcorp for the loans advanced, as the agreement between the mortgagees regarding priority did not discharge their obligations, and the mortgage documents were validly executed and registered despite immaterial alterations or alleged defects.

Parties
Applicant / Cross Respondent: Christopher Robin Fisher; Applicant / Cross Respondent: Fay Annette Fisher; First Respondent: Westpac Banking Corporation Ltd (ARBN: 007 457 141); Second Respondent: Gregory Munro; Third Respondent / Cross Claimant: Rural Adjustment and Finance Corporation of Western Australia
Jurisdiction
Australia
Judgment Date
30 November 1994
Procedural Posture
Property / Mortgage Proceedings / Judgment on Cross Claim Following Trial
Outcome
Judgment for the cross-claimant (Rafcorp) against the cross-respondents (Fishers) for the sum claimed, with possession orders and costs.
Legal Topics
Mortgages, Loan Repayment, Priority of Securities, Attestation of Mortgage Instruments, Material Alterations to Mortgages
Property Law Banking and Finance Law Mortgages Loan Repayment Priority of Securities Attestation of Mortgage Instruments Material Alterations to Mortgages

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Parties

Christopher Robin Fisher

Applicant / Cross Respondent

Fay Annette Fisher

Applicant / Cross Respondent

Westpac Banking Corporation Ltd (ARBN: 007 457 141)

First Respondent

Gregory Munro

Second Respondent

Rural Adjustment and Finance Corporation of Western Australia

Third Respondent / Cross Claimant

Procedural Posture

Property / Mortgage Proceedings / Judgment on Cross Claim Following Trial

Legal Issues

  1. 1 Whether the Fishers remained indebted to Rafcorp after sale proceeds were paid to Westpac under a letter of priority
  2. 2 Effect of letter of priority between mortgagees on mortgagors' obligations
  3. 3 Alleged failures in attestation and material alterations to mortgage documents

Ratio Decidendi

The Fishers remained indebted to Rafcorp for the loans advanced, as the agreement between the mortgagees regarding priority did not discharge their obligations, and the mortgage documents were validly executed and registered despite immaterial alterations or alleged defects.

Court Disposition

Judgment for the cross-claimant (Rafcorp) against the cross-respondents (Fishers) for the sum claimed, with possession orders and costs.

Orders

  • The cross-claimant (Rafcorp) have possession of Portion of Oldfield Location 628 and the whole of land in Certificate of Title Volume 1848 Folio 968; Portion of Oldfield Location 638 and the balance of land in Certificate of Title Volume 1848 Folio 552.
  • Judgment for the cross-claimant against the cross-respondents in the amount of $104,606 inclusive of pre-judgment interest.