Westpac Banking Corporation v Etex Australia Pty Ltd [2025] NSWSC 91

Supreme Court New South Wales

Medium Neutral Citation: Westpac Banking Corporation v Etex Australia Pty Ltd [2025] NSWSC 91 Hearing dates: 20 February 2025 Date of orders: 20 February 2025 Decision date: 20 February 2025 Jurisdiction: Equity - Real Property List Before: Pike J Decision: (1) DECLARES that the plaintiff (Westpac) is subrogated to the rights afforded by the mortgage held by Perpetual Trustee Company Limited, registered as dealing 9954581 (PTCL Mortgage), on the title of the property of the land comprising of X Peppercorn Avenue, Fairfield NSW (XXX/1025302) (Property). (2) ORDERS that the sixth defendant (the Registrar General) do all acts and things necessary to transfer the PTCL Mortgage to Westpac. (3) DECLARES that the PTCL Mortgage secures the repayment to Westpac of the following amounts: (a) the sum of $176,935.92; (b) interest on the sum stated in declaration 3(a) above, from 19 February 2025 onwards, at the interest rate provided in the loan agreement between Westpac and Zhi Li and Olga Otean executed on 20 February 2018 (Westpac Loan); (c) charges and expenses incurred by Westpac in connection with the Westpac Loan, including Westpac's costs of these proceedings on an indemnity basis; and (d) all other amounts which Zhi Li and Olga Otean become liable to pay Westpac pursuant to the terms of the Westpac Loan and/or the PTCL Mortgage. Catchwords: EQUITY – subrogation – lender advances money on basis that it would receive registered mortgage over property – due to irregularities in transaction lender unable to have its mortgage registered – lender claims entitlement to be subrogated to existing mortgage – appropriate case for subrogation orders to be made – no question of principle Legislation Cited: Nil Cases Cited: Aged Care Services Pty Ltd v Kanning Services Pty Ltd [2013] NSWCCA 393 Australia and New Zealand Banking Group Ltd v Whitehall [2020] NSWSC 489 Cheltenham & Gloucester plc v Appleyard [2004] EWCA Civ 291 Highland v Exception Holdings Pty Ltd (in liq) and Another [2006] NSWCA 318 Texts Cited: Nil Category: Principal judgment Parties: Westpac Banking Corporation (plaintiff) Etex Australia Pty Ltd (first defendant) Shift Finance Australia Pty Ltd (formerly Business Loans Pty. Ltd.) (second defendant) James Hardie Australia Pty Ltd (third defendant) Danny Vrkic, Trustee for bankrupt estate of Zhi Li (fourth defendant) Olga Otean (fifth defendant) Representation: Counsel: J Foley (plaintiff)