Australia and New Zealand Banking Group Limited v State of Western Australia, in the matter of Raleigh

The case of Australia and New Zealand Banking Group Limited v State of Western Australia, in the matter of Raleigh, involved the application by the mortgagee, ANZ, to obtain orders vesting certain properties in fee simple in itself, to act as mortgagee in possession and to allocate any surplus proceeds from the sale of the properties. The respondents, who were the State of Western Australia and the Official Trustee in Bankruptcy, did not oppose the orders. The applicants sought to exercise their powers as a mortgagee under various state legislations and to sell the properties to discharge their debts. The legal issues before the court included whether it was just and equitable to vest the properties in the applicant and the appropriate allocation of any surplus proceeds from the sale of the properties.

The court considered that it was just and equitable to vest the properties in the applicant as the mortgagee, given the circumstances of the case. The applicants had secured mortgages over the properties and the respondents had disclaimed the properties. The court also considered it appropriate for the applicant to act as if exercising its powers as mortgagee in possession, including the exercise of its power of sale. The court further held that the applicant was entitled to calculate the entirety of the debt secured and owing pursuant to the mortgages, and to deduct and retain for its own absolute use and property such amount from any proceeds of sale of the properties. The court also specified the order in which the proceeds of sale were to be applied, including the payment of any charges or body corporate debts, costs, charges and expenses, discharge of the debt owing to the applicant and payment of any subsequent mortgages or encumbrances.

The court made several orders to effect the vesting of the properties in the applicant, including orders for the applicant to act as if exercising its powers as mortgagee in possession, to calculate the debt secured and owing pursuant to the mortgages, to apply the proceeds of sale in a specified order, to issue a notice of default or demand and a notice to vacate, and to pay its costs from the proceeds of the sale. The court also made a declaration that the applicant was entitled to prove in the bankruptcies of the bankrupts for an amount equal to the total of the bankrupts' debt to the applicant and the applicant's costs, less any amount received by the applicant from the proceeds of any sales of the Properties.

The final orders of the court provided for the vesting of the estates in fee simple of the properties in the applicant, the applicant's entitlement to calculate the debt secured and owing, the order in which the proceeds of sale were to be applied, the applicant's requirement to file an affidavit in the action outlining its receipts and payments in relation to the sale of the property, the applicant's deemed service of a notice of default or demand, its non-requirement to issue a notice of default or demand and to issue a notice to vacate, the applicant's costs and charges to be treated as reasonable enforcement expenses and to be paid from the proceeds of the sale, and the declaration that the applicant was entitled to prove in the bankruptcies of the bankrupts for an amount equal to the total of the bankrupts' debt to the applicant and the applicant's costs, less any amount received by the applicant from the proceeds of any sales of the Properties.