National Australia Bank Ltd v Rowe

In National Australia Bank Ltd v Rowe, the parties were the National Australia Bank Ltd as the plaintiff and Rowe as the defendant. The dispute involved the plaintiff's claim for a general account from the defendant and the defendant's counterclaim that was potentially subject to being struck out as not disclosing a reasonable cause of action. The case was heard in the Supreme Court of Western Australia.

The legal issues before the court included whether the counterclaim should be struck out and whether there was a possible fraud exception to the usual requirements for an order for an account in the context of a mortgagor-mortgagee relationship. The court had to consider the principles surrounding the entitlement of a mortgagor to an account and whether there were circumstances under which an account could be ordered, particularly in the context of a possible fraud exception.

The court's reasoning focused on the established principles that a mortgagor is only entitled to an order for an account as an ancillary to an action for redemption, and the offer to redeem is usually an essential prerequisite to any such claim for relief. The court acknowledged the general rule that a mortgagee cannot be made a party to an action relating to the mortgage unless the mortgagor has made an offer to redeem. However, the court also noted that the absence of an allegation of fraud could affect the indefeasibility of the mortgage. The court held that the principle contended for by the plaintiff was rooted in the acceptance that any litigation between a mortgagor and mortgagee must have utility, and it reinforced the basis for the principle that where an account is sought the mortgagor must offer to redeem.

The court determined that the counterclaim should not be struck out as it disclosed a reasonable cause of action. However, the court found that there was no possible fraud exception to the usual requirements for an order for an account. The court emphasised that the entitlement to an account was ancillary to an action for redemption, and the offer to redeem was usually an essential prerequisite. The court's decision was based on established principles and authoritative texts in equity doctrine and remedies.