ST GEORGE BANK LTD -v- McTAGGART & ANOR [2007] WASC 150

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 150
Case No:	CIV:2020/2006	Heard:	4 JULY 2007
Coram:	NEWNES J	Delivered:	24/07/07
No of pages:	13	Judgment Part:	1 of 1
Result:	Declaration that plaintiff had priority
Category:	B
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Parties:	ST GEORGE BANK LTD (ACN 055 513 070) STEPHEN JOHN McTAGGART NEWCASTLE STREET INVESTMENTS PTY LTD (ACN 082 473 783)
Catchwords:	Mortgages "All moneys" mortgage Whether damages awarded to plaintiff secured by mortgage Priority Tacking Rule in Hopkinson v Rolt What constitutes notice of subsequent encumbrance Whether constructive notice sufficient Turns on own facts
Legislation:	Advance Bank (Merger with St George Bank) Act 1998 (WA)
Case References:	Beachquest Pty Ltd v Interstate Mortgage and Investments Pty Ltd [2001] QSC 512 Central Mortgage Registry of Australia Ltd v Donemore Pty Ltd [1984] 2 NSWLR 128 Donnelly v Commonwealth Bank of Australia Ltd (1996) 140 ALR 46 Hopkinson v Rolt (1861) 9 HL Cas 514 Nia v Phuong (1993) NSW ConvR 55-671 Oversea-Chinese Banking Corp Ltd v Malaysian Kuwaiti Investment Co [2003] VSC 495 Panebianco v Bendigo Bank Ltd [1999] VSC 50 R & I Bank of Western Australia Ltd v Cash Resources Australia Pty Ltd (1993) 11 WAR 536 Sibbles v Highfern Pty Ltd (1987) 164 CLR 214 West v Williams [1899] 1 Ch 132

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : ST GEORGE BANK LTD -v- McTAGGART & ANOR [2007] WASC 150 CORAM : NEWNES J HEARD : 4 JULY 2007 DELIVERED : 24 JULY 2007 FILE NO/S : CIV 2020 of 2006 BETWEEN : ST GEORGE BANK LTD (ACN 055 513 070)

Plaintiff

AND

STEPHEN JOHN McTAGGART

First Defendant

NEWCASTLE STREET INVESTMENTS PTY LTD (ACN 082 473 783)

Second Defendant

Catchwords:

Mortgages - "All moneys" mortgage - Whether damages awarded to plaintiff secured by mortgage - Priority - Tacking - Rule in Hopkinson v Rolt - What constitutes notice of subsequent encumbrance - Whether constructive notice sufficient - Turns on own facts

Legislation:

Advance Bank (Merger with St George Bank) Act 1998 (WA)

(Page 2)

Result:

Declaration that plaintiff had priority

Category: B

Representation:

Counsel:

Plaintiff : Mr T I Masson

First Defendant : No appearance

Second Defendant : Mr P A Panegyres

Solicitors:

Plaintiff : Gadens Lawyers

First Defendant : No appearance

Second Defendant : Lawton Gillon

Case(s) referred to in judgment(s):

Beachquest Pty Ltd v Interstate Mortgage and Investments Pty Ltd [2001] QSC 512
Central Mortgage Registry of Australia Ltd v Donemore Pty Ltd [1984] 2 NSWLR 128
Donnelly v Commonwealth Bank of Australia Ltd (1996) 140 ALR 46
Hopkinson v Rolt (1861) 9 HL Cas 514
Nia v Phuong (1993) NSW ConvR 55-671
Oversea-Chinese Banking Corp Ltd v Malaysian Kuwaiti Investment Co [2003] VSC 495
Panebianco v Bendigo Bank Ltd [1999] VSC 50
R & I Bank of Western Australia Ltd v Cash Resources Australia Pty Ltd (1993) 11 WAR 536
Sibbles v Highfern Pty Ltd (1987) 164…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] WASC 150
Decision Date: 24 JULY 2007

CaseChat Overview and Summary

In the matter of St George Bank Ltd v McTaggart, the court was presented with a dispute concerning the priority of a mortgage held by St George Bank Ltd over a property owned by McTaggart. The bank claimed priority over another party that had also issued a mortgage to McTaggart, asserting that its mortgage was secured by "all moneys" and thus took precedence over the later mortgage. The case was heard in the Supreme Court of New South Wales.

The legal issues at the heart of the case revolved around the interpretation of the phrase "all moneys" in the context of mortgages and whether the subsequent mortgagee had sufficient notice of the earlier mortgage. The court was required to determine whether the priority of St George Bank Ltd's mortgage could be preserved under the principles established in Hopkinson v Rolt and whether constructive notice of the earlier mortgage was enough to affect the priority of the subsequent mortgage. The central question was whether the priority of the earlier mortgage could be preserved when the subsequent mortgagee had knowledge of the earlier mortgage, but the facts did not support the application of the "tacking" rule.

The court examined the wording of the earlier mortgage and found that it indeed encompassed "all moneys," thereby extending the security to future loans and monies. The court also considered whether McTaggart, as the mortgagor, had constructive notice of the earlier mortgage at the time the second mortgage was issued. The court concluded that while McTaggart had some knowledge of the earlier mortgage, the facts did not support the application of the "tacking" rule, which would have allowed the second mortgagee to take free of the earlier mortgage. Consequently, St George Bank Ltd was held to have priority over the subsequent mortgagee. The court granted a declaration that St George Bank Ltd had priority over the subsequent mortgage, confirming the security of their position over the property.

Orders

Orders of the court

Declaration that plaintiff had priority

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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