Australia and New Zealand Banking Group Ltd v Whitehall [2020] NSWSC 489

Australia and New Zealand Banking Group Ltd v Whitehall [2020] NSWSC 489

ANZ is entitled to be subrogated to the rights of PTCL under the registered mortgage because it advanced funds to discharge that mortgage with the expectation of receiving registered security but did not do so; neither lack of dealings with the mortgagor, nor any negligence in not obtaining the intended security, nor absence of wrongdoing by the mortgagor detracts from the equity that would render it unconscionable for Ms Woodman to deny ANZ the benefit of the security.

Parties
Plaintiff: Australia and New Zealand Banking Group Ltd; First Defendant: Nathaniel John Whitehall; Second Defendant: Tania Marie Woodman; Third Defendant: The Registrar-General of NSW
Jurisdiction
Australia
Judgment Date
05 May 2020
Procedural Posture
Equity Proceedings—summary Judgment Application / Decision on Summary Judgment Application and Application to Amend Defence
Outcome
Summary judgment granted in favour of ANZ against Ms Woodman (the Second Defendant); application by Ms Woodman to amend Defence dismissed with costs; ANZ entitled to declaration of subrogation and to interest as appropriate.
Legal Topics
Subrogation, Mortgages, Summary Judgment, Unconscionability
Equity Subrogation Mortgages Summary Judgment Unconscionability

Case Brief

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Parties

Australia and New Zealand Banking Group Ltd

Plaintiff

Nathaniel John Whitehall

First Defendant

Tania Marie Woodman

Second Defendant

The Registrar-General of NSW

Third Defendant

Procedural Posture

Equity Proceedings—summary Judgment Application / Decision on Summary Judgment Application and Application to Amend Defence

Legal Issues

  1. 1 Whether ANZ is entitled to be subrogated to the rights of PTCL under a registered mortgage over the Ellis Lane property in circumstances where ANZ advanced funds to discharge the PTCL mortgage but was unable to register its own mortgage due to irregularities.
  2. 2 Whether any alleged carelessness or laxness on the part of ANZ in its dealings with the first defendant precludes its entitlement to subrogation.
  3. 3 Whether the absence of dealings between ANZ and the mortgagor (Ms Woodman) or the lack of wrongdoing by Ms Woodman affects the availability of the remedy of subrogation.

Ratio Decidendi

ANZ is entitled to be subrogated to the rights of PTCL under the registered mortgage because it advanced funds to discharge that mortgage with the expectation of receiving registered security but did not do so; neither lack of dealings with the mortgagor, nor any negligence in not obtaining the intended security, nor absence of wrongdoing by the mortgagor detracts from the equity that would render it unconscionable for Ms Woodman to deny ANZ the benefit of the security.

Court Disposition

Summary judgment granted in favour of ANZ against Ms Woodman (the Second Defendant); application by Ms Woodman to amend Defence dismissed with costs; ANZ entitled to declaration of subrogation and to interest as appropriate.

Orders

  • Declaration that ANZ is entitled to be subrogated to the rights of Permanent Trustee Company Ltd under registered mortgage AJ201817 to secure payment of $983,927.80.
  • Interest to be paid, to be determined by agreement or subsequent submissions if necessary.