Anthony Thomas Rigg & v Commonwealth Bank of Australia & Ors

The applicant, Anthony Thomas Rigg, appealed to the Full Court of the Supreme Court of Western Australia against orders made by a single judge. The dispute concerned a mortgage granted by Mr Rigg to the Commonwealth Bank of Australia. Mr Rigg alleged that the Bank had waived its right to enforce the mortgage by reason of its conduct.

The central legal issue before the Full Court was whether the Bank had waived its right to treat the mortgage as immediately enforceable due to Mr Rigg's default. This involved determining whether the Bank's conduct, specifically its communication with Mr Rigg regarding the default and proposed repayment arrangements, amounted to an election to affirm the mortgage and abandon its right to immediate foreclosure or sale.

The Full Court found that the Bank's actions did not constitute a waiver. It reasoned that the Bank's communications, while offering potential leniency, did not unequivocally indicate an intention to abandon its rights under the mortgage. The Court applied the legal principle that waiver requires a clear and unequivocal election to abandon a known right. In this instance, the Bank's conduct was consistent with seeking to resolve the default rather than relinquishing its security. The appeal was accordingly dismissed.