Pola v Australia and New Zealand Banking Group Limited

The dispute in *Pola v Australia and New Zealand Banking Group Limited* concerned allegations by the mortgagors that the mortgagee, Australia and New Zealand Banking Group Limited, breached its duty under section 85(1) of the *Property Law Act 1974* (Qld) when exercising its power of sale. The mortgagors contended that the mortgagee failed to discharge this duty by not referring to a valuable water allocation associated with the property in its advertisements for sale. The matter came before the Court of Appeal of New South Wales.

The court was required to determine whether the mortgagee had breached its statutory duty to obtain the best price reasonably obtainable for the property at the time of sale. Further issues on appeal included whether the primary judge had correctly assessed the market value of the property, whether the primary judge had erred in reducing the judgment amount for the mortgagee by the sum awarded on the mortgagors' cross-claim, and whether the primary judge had exercised their discretion regarding costs appropriately.

The court found that the primary judge had correctly applied the principles governing a mortgagee's duty under section 85(1) of the *Property Law Act 1974* (Qld). It was held that the omission to specifically mention the water allocation in the advertisements did not, in the circumstances, amount to a failure to take reasonable steps to obtain the best price. The court affirmed the primary judge's assessment of market value and the adjustments made to the judgment sum. Consequently, both the appeal and the cross-appeal were dismissed. The appellants were ordered to pay the Bank's costs of the appeal, while the Bank was ordered to pay the appellants' costs of the cross-appeal.