Commonwealth Bank of Australia v Rigg [2000] NSWSC 9

New South Wales Supreme Court

CITATION : Commonwealth Bank of Australia v Rigg [2000] NSWSC 9 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 12836/93 HEARING DATE(S) : 8-11 and 29 November 1999 JUDGMENT DATE : 1 February 2000

PARTIES : Commonwealth Bank of Australia v Anthony Thomas Rigg JUDGMENT OF : Brownie AJ at 1

LOWER COURT Supreme Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER :

COUNSEL : A.G. Bell for the plaintiff R.W. Parker QC & D. Fitzgibbon for the defendant SOLICITORS : L.E. Taylor for plaintiff & cross-defendant A.P. Sparke & Broad with Phelps & Brown for defendants/cross-claimant CATCHWORDS : Contract - construction - implied terms - Mortgage - alleged sale at undervalue - remedy of mortgagors LEGISLATION CITED : Real Property Act 1900 Louinder v Leis (1982) 149 CLR 509, 519-520 Colin D Young Pty Ltd v Commercial General Acceptance Ltd (1982) NSW Conv R 55-097 at 56, 573 CASES CITED : Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 327, 347 Gramophone Co Ltd [1909] AC 488 Lamb v Votogno (1987) 164 CLR 1 DECISION : Judgment for plaintiff

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BROWNIE AJ

Tuesday, 1 February 2000

12836/93 - COMMONWEALTH BANK OF AUSTRALIA v RIGG & ANOR JUDGMENT 1 HIS HONOUR: In 1985 the plaintiff ("CBA") and the defendants, Mr and Mrs Rigg ("the Riggs"), entered into an agreement, the detail of which is not in evidence, but apparently to the general effect that CBA would advance money to the Riggs, using bills of exchange. The overall transaction involved (amongst other things) the Riggs executing a guarantee in favour of CBA in respect of the liability of "their company", Tony Rigg Welding and Manufacturing Pty Ltd ("Welding"), and their granting mortgages over two properties they owned, namely mortgage registered number V937197 over certain land at Nowra, where their home was ("the Nowra property"), and mortgage registered number V937199 over certain land at South Nowra, where there was an industrial complex divided up into units let out to tenants ("the South Nowra property"). Each of those mortgages contained a term incorporating the provisions of an instrument, registered number T340042.