J & H Just (Holdings) Pty Ltd v Bank of New South Wales [1971] HCA 57

High Court of Australia Barwick C.J. McTiernan, Menzies, Windeyer and Owen JJ. J & H Just (Holdings) Pty Ltd v Bank of New South Wales [1971] HCA 57

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 17 Barwick C.J.

On 4th September 1961 Oscar Lewis Josephson was the registered proprietor in fee simple free of encumbrances of the whole of the land comprised in certificate of title registered under the Real Property Act, 1900-1970 N.S.W. (the Act) vol. 6521 fol. 156. A house was erected thereon known as 27 Linden Way, Castlecrag, Sydney. On that date he executed in favour of the Bank of New South Wales a memorandum of mortgage in registrable form of the said land to secure overdraft accommodation then, and thereafter to be, granted to him by the Bank. At the same time he deposited with the Bank the duplicate certificate of title to the said land as security for that accommodation and to enable it to register the memorandum of mortgage should it choose to do so. However the Bank did not do so. According to the evidence given at the hearing of the suit out of which this appeal has arisen the Bank's practice in respect of the registration of securities taken by it for moneys advanced by way of overdraft has not been uniform. On occasions the memorandum of mortgage given to secure an overdraft is registered and on other occasions it is not. No indication was given in the evidence as to the basis on which it is decided to follow one course rather than the other. Nothing, however, in the evidence suggests that the non-registration of the memorandum of mortgage in the instant case was the result of any agreement between the Bank and the customer. But there was evidence that the reliance by lenders of money on an unregistered memorandum of mortgage accompanied by a deposit of the duplicate certificate of title was a not infrequent occurrence in Sydney.