Australia & New Zealand Banking Group Ltd v National Mutual Life Nominees Ltd [1977] HCA 42

High Court of Australia Gibbs, Stephen, Mason, Jacobs and Murphy JJ. Australia & New Zealand Banking Group Ltd v National Mutual Life Nominees Ltd [1977] HCA 42

ORDER Appeal allowed. Order of the Supreme Court of Victoria varied by substituting for the questions and answers set forth in paragraph D thereof the following questions and answers. D. Question 1. Did the Society issue to the defendant Australia and New Zealand Banking Group Limited documents expressed thereon to be Debenture Stock Certificates as follows:—

(i) Certificates Nos. 1 to 15, each dated 9th April, 1975, each in the nominal amount of $100,000 Debenture Stock issued by way of security?

Answer: Yes.

(ii) Certificates Nos. 21 to 25, each dated 9th April 1975, each in the nominal amount of $100,000 Debenture Stock issued by way of security?

Answer: Yes. Question 2. (i) (ii) If either part of Question 1 be answered Yes, is Australia and New Zealand Banking Group Limited the holder of valid Debenture Stock under the Trust Deed, as described in each such Certificate? Not answered. Question 3. (i) (ii) Did the issue of each such Certificate alone or in conjunction with the transaction of which it formed part, confer on Australia and New Zealand Banking Group Limited any and what rights by way of security over any and what assets of the Society to secure payment by the Society to Australia and New Zealand Banking Group Limited of any and what sums? Answer: Yes, the rights of a holder of security stock represented by the Certificates referred to in Question 1 subject to the interest in the mortgaged property of stockholders whose interests were created earlier in point of time unless the Trustee shall waive all breaches by the Society in its issuing of the said security stock of any of the covenants, obligations, conditions or provisions contained in the Trust Deed. Question 4. (i) (ii) If either part of Question 1 be answered, Yes, is the defendant Australia and New Zealand Banking Group Limited a secured creditor of the Society in respect of any and what sums by way of interest, under or pursuant to or in connection with the issue to the said Bank of the said documents. Answer: Australia and New Zealand Banking Group Limited is a secured creditor of the Society in respect of interest accrued and accruing on debts owing by the Society to Australia and New Zealand Banking Group Limited in terms of the contracts between the Society and Australia and New Zealand Banking Group Limited provided that the mortgaged property as defined by the Trust Deed is sufficient to pay in full the moneys secured by the Trust Deed and provided that the total sum owing on the principal sum of Debenture Stock does not exceed $3.5 million and provided that the total sum for principal and interest does not exceed the face value of the security stock held by Australia and New Zealand Banking Group Limited. Question 5. Does the Australia and New Zealand Banking Group Limited have, pursuant to the issue to it of any other documents expressed thereon to be Debenture Stock Certificates, and whether or not such documents were subsequently surrendered to the Society, any and what rights by way of security over any and what assets of the Society to secure payment by the Society to the said Bank of any and what sums? Unnecessary to answer. Order that the costs of all parties to the appeal taxed as between solicitor and client be paid or retained as the case may be out of the property the subject of the charge in the Trust Deed.