Advance Bank Australia Limited v Wilby No. Scgrg-97-588 Judgment No. S6376

[1997] SASC 6376

WEDNESDAY, 17 SEPTEMBER 1997

ADVANCE BANK AUSTRALIA LIMITED  v  WILBY
Prior J
Appeal from a decision of a Master. 
The plaintiff bank obtained orders for possession of real property the subject of mortgages registered in the name of Bank of South Australia Limited.  The defendant claims that the plaintiff bank is not registered as the proprietor of the mortgages.  Thus it cannot seek ejectment in a summary manner. A master overruled the objection and made orders for possession.
In my view the master was correct in granting the orders for possession. The provisions of the Bank Merger (Bank of SA and Advance Bank) Act, 1966 make plain that all assets of Bank of South Australia Limited are vested in the plaintiff, Advance Bank Australia Limited. Those assets include legal interests in real property. The registered mortgages referred to in these proceedings are that. The effect of that vesting is to confer upon the new bank the rights conferred by s192 on a registered mortgagee. The provisions in s6 of the Real Property Act 1886 cannot override the plain intention of Parliament. I refer in particular to ss3, 6(2), 8(d), 10(1)(a) and 18 of the 1996 Act. As if to confirm the already plain intention of Parliament, s19 of the 1996 Act expressly provides that the Act has effect despite the Real Property Act 1886 or any other law.
I refer to, but feel it unnecessary to quote from, some authority; South Eastern Drainage Board SA v Savings Bank of South Australia ; Travinto Nominees Pty Ltd v Vlattis ; and Brown v The Commonwealth Bank .
I agree with the respondent's submission that the 1996 Act creates a scheme whereby the assets, rights and entitlements of Bank of South Australia Limited are vested in Advance Bank Australia Limited with respect to a number of things including registered mortgages.  I also agree that the Advance Bank is entitled to exercise the rights of Bank of South Australia Limited pursuant to any mortgage security it holds as if it was Bank of South Australia Limited.  I also agree that a reference to Bank South Australia Limited in the mortgage or as a registered mortgagee is required to be read as a reference to Advance Bank Australia Limited.
The appeal is dismissed.  The appellant is to pay the respondent's costs of this appeal.  

JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT OWING TO FAILURE OF FOOTNOTE TRANSFER TO JURIS

(1939) 62 CLR 603

1. (1973) 129 CLR 1

1. (1993) 63 SASR 188