HAY v AUSTRALIAN AND NEW ZEALAND BANKING GROUP LTD [1989] NSWCA 99

HAY v AUSTRALIAN AND NEW ZEALAND BANKING GROUP LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY JA 20 March 1989, 22 March 1989

[1989] NSWCA 99 Stay of Execution.

Priestly JA On 16 February 1989 Giles J held that the Australian and New Zealand Banking Group Ltd (ANZ) were entitled to possession of properties at Fairlight and Gosford of which Mr Hay was the registered proprietor. He made orders accordingly, ordering that any writs of possession issued should lie in the office for fourteen days from the date of his order. He also gave judgment for ANZ against Mr Hay for $366,116.76. The properties had been mortgaged by Mr Hay to ANZ (as second mortgagee) as security for his guarantee of the indebtedness of Seaboard Western Corporation Pty Ltd. Mr Hay did not dispute that the mortgages had been given and that there had been default under them entitling ANZ to possession, nor that ANZ was entitled to judgment for the amount claimed to be due.

Mr Hay had, however, filed a cross-claim which, in its early form made allegations against ANZ in some variety, but which, as eventually presented before Giles J was explicitly limited to a claim that Mr Hay was entitled to an amount of money, by way of restitution from ANZ which he claimed to have paid under a mistake of fact. This amount was said to be equal to the amount which a company named Transcrete Pty Ltd could have obtained from ANZ had Transcrete maintained, when ANZ called on Transcrete to satisfy its indebtedness to ANZ, a set off or cross-claim against such indebtedness for breach of contract or negligence in paying and debiting to Transcrete's account amounts of money debited to that account as a result of the activities of one of Transcrete's employees. This employee was alleged to have wrongly obtained payments from ANZ which were debited to Transcrete's account. Mr Hay claimed that Transcrete would have been entitled to recover the amount of such payments from ANZ because it had permitted those amounts to get into the employee's hands as a result of its negligent acts and breaches of contract with Transcrete.