Westpac Banking Corporation v Etex Australia Pty Ltd [2025] NSWSC 91

Westpac Banking Corporation v Etex Australia Pty Ltd [2025] NSWSC 91

Westpac advanced funds on the expectation of receiving a registered mortgage but was unable to register due to caveats; accordingly, in equity, Westpac is subrogated to the rights of the prior mortgagee to secure repayment of the sum advanced, interest, charges, and its proceeding costs.

Parties
Plaintiff: Westpac Banking Corporation; First Defendant: Etex Australia Pty Ltd; Second Defendant: Shift Finance Australia Pty Ltd (formerly Business Loans Pty. Ltd.); Third Defendant: James Hardie Australia Pty Ltd; Fourth Defendant: Danny Vrkic, Trustee for bankrupt estate of Zhi Li; Fifth Defendant: Olga Otean
Jurisdiction
Australia
Judgment Date
20 February 2025
Procedural Posture
Equity Real Property List / Principal Judgment
Outcome
Relief granted; subrogation declared and PTCL mortgage ordered transferred to Westpac; amounts secured to Westpac as specified.
Legal Topics
Subrogation, Mortgage Priority, Unregistered Mortgage, Secured Creditor
Equity Real Property Subrogation Mortgage Priority Unregistered Mortgage Secured Creditor

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Parties

Westpac Banking Corporation

Plaintiff

Etex Australia Pty Ltd

First Defendant

Shift Finance Australia Pty Ltd (formerly Business Loans Pty. Ltd.)

Second Defendant

James Hardie Australia Pty Ltd

Third Defendant

Danny Vrkic, Trustee for bankrupt estate of Zhi Li

Fourth Defendant

Olga Otean

Fifth Defendant

Procedural Posture

Equity Real Property List / Principal Judgment

Legal Issues

  1. 1 Whether Westpac is entitled to be subrogated to the rights of Perpetual Trustee Company Limited as prior mortgagee
  2. 2 Whether Westpac can secure repayment given inability to register its mortgage
  3. 3 Priority of claims on the property

Ratio Decidendi

Westpac advanced funds on the expectation of receiving a registered mortgage but was unable to register due to caveats; accordingly, in equity, Westpac is subrogated to the rights of the prior mortgagee to secure repayment of the sum advanced, interest, charges, and its proceeding costs.

Court Disposition

Relief granted; subrogation declared and PTCL mortgage ordered transferred to Westpac; amounts secured to Westpac as specified.

Orders

  • DECLARES that Westpac is subrogated to the rights of Perpetual Trustee Company Limited as mortgagee of the property.
  • ORDERS Registrar General to effect transfer of PTCL Mortgage to Westpac.