Commercial Banking Co of Sydney Ltd v Love [1975] HCA 48

High Court of Australia Barwick C.J. Stephen and Jacobs JJ. Commercial Banking Co of Sydney Ltd v Love [1975] HCA 48

ORDER Appeal allowed with costs. Order of the Supreme Court of Western Australia set aside and in lieu thereof order that such suit be dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 29 Barwick C.J.

D.H. Investments Pty. Ltd. (the second respondent) by a memorandum of mortgage which at material times was registered under the Transfer of Land Act, 1893 W.A. as amended, charged certain land in Perth with the repayment to the appellant ("the bank") of all moneys whatsoever then or thereafter owing to the bank by the second respondent or by a related company. The overdraft accommodation secured by this mortgage was negotiated through the Nedlands branch of the bank. The second respondent also had an account at a branch of the bank in Adelaide.

On 28th June 1971 the second respondent sold the land to the first respondent for a sum payable in cash. At the date of this sale there was due to the bank by the second respondent a total sum of the order of nine hundred thousand dollars (including the indebtedness on both accounts). The bank when requested by the first respondent so to do, refused to discharge the mortgage except upon payment of the sum of $91,000, that happening to be the total amount for which stamp duty had been paid in respect of the mortgage prior to the date of the commencement of the action, namely 21st October 1971. The amount for which stamp duty had been paid on the mortgage at the date of the sale of the land was $70,000.

The first respondent, as purchaser under the contract of sale, sued the bank and the second respondent claiming:

(a) against the bank—

(i) a declaration that the sum secured by mortgage A410038 was $64,000;