SMITH v AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD [1996] NSWCA 584

SMITH v AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBY P, PRIESTLEY and SHELLER JJA 30 November 1995, 5 February 1996

MORTGAGES — "all moneys" clause — banker/customer mortgage — proper approach to construction — whether should be narrowly construed or according to terms — guidelines for construction — held: Clause to be construed according to its language which was deliberate, particular, not unfair and intentionally broad. BANKING AND BANKERS — security instruments — mortgage — "all moneys" clause — proper approach to construction- held: According to terms. CONTRACT — written contract mortgage- proper approach construction — "all moneys" clause. WORDS AND PHRASES — "all moneys".

MORTGAGES — "all moneys" clause — width of language of — proper approach to construction of — whether such clauses should be "read down" — whether such clauses should be given their ordinary ample meaning — suggested guidelines for construction of*all moneys" clauses in mortgages — held: (Priestley JA; Kirby P and Sheller JA concurring):

BANKS AND BANKING — security instruments — mortgages — "all moneys' clause — meaning of- proper approach to construction of — whether should be read down — whether to be given meaning according to ordinary denotation of the words used.

CONTRACT — construction — banker/customer — mortgage — "all moneys" clause.

WORDS and PHRASES — "all moneys".

(1) The primary duty of a court is to give effect to the meaning of an "all moneys" clause, as any other legal instrument, according to its terms, understood in the context.

Fountain v Bank of America National Trust and Savings Association (1992) 5 BPR 11817 (NSWCA) applied; Estoril Investments Pty Ltd v Westpac Banking Corporation (1993) 6 BPR 13146 (NSWSC); Re Modular Design Group Pty Limited (Receiver and Manager Appointed) (In Liq) (1994) 35 NSWLR 96 (SC); Bank of India v Transcontinental Commodity Merchants Limited [1982] QB 506; Catley Farms Limited v ANZ Banking Group [NZ] Ltd [1982] 1 NZLR 430 (HC) considered;