Condon, in the matter of Rayhill v Australia and New Zealand Banking Group Ltd [2020] FCA 1674

Federal Court of Australia

Condon, in the matter of Rayhill v Australia and New Zealand Banking Group Ltd [2020] FCA 1674 File number: NSD 1331 of 2019

Judgment of: STEWART J

Date of judgment: 20 November 2020

Catchwords: EQUITY – where trustee in bankruptcy had an equitable lien over real property in respect of bankrupt's claims as trustee of a trust that owned the property – where trustee claims in equity against the mortgagee bank that sold the property as mortgagee in possession for breach of its equitable duty of good faith or to act bona fide and honestly by selling property at undervalue – whether applicant as equitable lienee can make such a claim – whether claim restricted to mortgagor, lower-ranking mortgagees and guarantors – whether grounds for summary dismissal REAL PROPERTY – where trustee in bankruptcy had an equitable lien over real property in respect of bankrupt's claims as trustee of a trust that owned the property – where trustee claims against the mortgagee bank that sold the property as mortgagee in possession for breach of duty under s 111A(1) of the Conveyancing Act 1919 (NSW) to take reasonable care to ensure that the property is sold for market value – whether applicant as equitable lienee can make such a claim under s 111A(4) as "a person who suffers loss or damage as a result of the breach of the duty" – whether grounds for summary dismissal PRACTICE AND PROCEDURE – doctrine of election – where applicant at one time said on his then present knowledge he had no claim and subsequently pursues a claim – whether such conduct constitutes an election between inconsistent rights – where applicant is a party to the mortgagor's release of the respondent from a claim and later pursues his own claim based on the same conduct by the respondent – whether such conduct by the applicant constitutes an election between inconsistent rights – whether grounds for summary dismissal