Olympic Holdings Pty Ltd v Windslow Corporation Pty Ltd (in liq)

In Olympic Holdings Pty Ltd v Windslow Corporation Pty Ltd (in liq), the plaintiff sought a declaration that the assignment of a mortgage and the secured monies to a third party did not affect the priority of its own mortgage over the assignee's interest. The plaintiff's mortgage contained an 'all moneys' clause that purported to secure all monies owed by the mortgagor to the assignee, including any monies owed to the assignee after the assignment of the mortgage. The defendants sought to rely on the assignment to argue that they were entitled to priority over the plaintiff's mortgage. The central issue before the court was the proper interpretation of the 'all moneys' clause in the mortgage, and whether it extended to securing any indebtedness owed by the mortgagor to the assignee after the assignment of the mortgage.

The court considered the authorities on the construction of 'all moneys' clauses, and held that the clause must be construed in light of the actual language used and having regard to the context in which the mortgage came to be executed and its commercial purpose. The court rejected the defendants' argument that the clause secured any indebtedness incurred by the mortgagor to the assignee after the assignment of the mortgage, finding that the clause was intended to secure any indebtedness that the mortgagor owed to the assignee at the time of the assignment, and not any indebtedness incurred thereafter. The court held that the proper approach to the construction of the clause was to give effect to the commercial purpose of the transaction, and that the defendants had failed to demonstrate that the clause was intended to have any broader effect.

The court granted the plaintiff's application for a declaration that the assignment of the mortgage and the secured monies to the third party did not affect the priority of the plaintiff's mortgage over the assignee's interest. The court held that the 'all moneys' clause in the mortgage did not secure any indebtedness incurred by the mortgagor to the assignee after the assignment of the mortgage, and that the defendants were not entitled to rely on the assignment to argue that they were entitled to priority over the plaintiff's mortgage. The court further held that the plaintiff was entitled to declaratory relief as it had established its case on the balance of probabilities.