Edwards v Australia and New Zealand Banking Group Ltd

The applicant, Australia and New Zealand Banking Group Limited, sought special leave to appeal to the High Court of Australia against a judgment of the Full Court of the Supreme Court of Queensland. The dispute concerned whether the applicant, as a registered mortgagee of Torrens Title land, was required to provide notice to an unregistered lessee of that land prior to exercising its power of sale. The applicant contended it held an equitable interest in the land by virtue of being an unregistered lessee for a term of years.

The legal issues before the High Court involved the interpretation of provisions within the Property Law Act and the Real Property Act 1861 (Qld). Specifically, the court was required to determine whether the definition of "mortgagor" in section 4 of the Property Law Act applied to section 84 of that Act, which governs the notice requirements for a mortgagee's sale. Furthermore, the court had to consider the effect of section 44 of the Real Property Act 1861 on the registered mortgagee's interest, particularly in relation to any equitable interests created by the lease and any equity of redemption held by the lessee.

The Full Court had determined that there was no contrary intention disclosed in the relevant legislation to displace the application of the definition of "mortgagor" to section 84 of the Property Law Act, meaning notice was required. However, two of the judges held that section 44 of the Real Property Act 1861 had the effect that the registered mortgagee took and held its interest free from any equitable interests created by the lease and free from any equity of redemption recognised by the general law. This was assumed to be the case even if the applicant's equitable interests were otherwise legitimately made out. One judge determined the case on a different basis.