Sewell v Agricultural Bank of Western Australia [1930] HCA 29

104 HIGH COURT ist

(HIGH COURT OF AUSTRALIA.)

SEWELL ... s f apr APPELLANT; PLAINTIFF,

AND

THE AGRICULTURAL BANK OF WESTERN AUSTRALIA f r . - a < DEFENDANT,

i RESPONDENT.

ON APPEAL FROM THE SUPREME COURT OF WESTERN AUSTRALIA.

H.C. or A. Land—Grazing leases—Mortgage—Power of sale—Sale to mortgagee's servant—

1930. Compensation claimed by mortgagor—Validity of sale—Agricultural Bank Act —_~ 1906 (W.A.) (No. 15 of 1906), secs. 13 (2), 37 (2)—Land Act 1898 (W.A.) (No. PERTH, 37 of 1898), secs. 34, 140—Transfer of Land Act Amendment Act 1909 (W.A.) pee CHES (No. 54 of 1909), sec. 6 (2). Sara gras Under a power of sale enabling a bank as mortgagee to sell certain land ~

and Dixon JJ. by private sale or public tender, it sold the land by private sale to a servant in its employ for the amount owing to the bank on the mortgage for principal _ and interest, after unsuccessfully attempting to sell by tender or otherwise. 'The sale to the servant was made in good faith and not at an undervalue. It was the servant's duty to help generally in the administration of the bank's business in the district where the land was situate, but he had no power to sell land, and all he could do was to submit offers to the head office of the bank, which had a separate sales department. The servant was the person who would have received tenders if any had been made, but he would have transmitted them to the head office with such advice as he thought fit. In fact no tender and no offer had been received, and the servant had taken no active step in relation to the exercise of the bank's power of sale. Held, that the sale to the servant was not wrongful : By Gavan Duffy, Rich and Dizon JJ., on the ground that he had not become really involved in the sale of the land in question and did not occupy a situation — in which his duty and interest did or might conflict; and