Westpac Banking Corporation v Murray Riverside Pty Ltd

The case of Westpac Banking Corporation v Murray Riverside Pty Ltd concerns the enforcement of a mortgagee's power of sale against a caveat lodged by the mortgagor. The matter was heard in the Supreme Court of Western Australia. The primary issue was whether the court should remove the caveat lodged by Murray Riverside to allow Westpac to proceed with the sale of the mortgaged property. This decision turns on the specific facts and circumstances of the case.

Murray Riverside argued that once an arguable case for a caveatable interest is established, the court should hesitate to remove the caveat, citing the case of Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd. However, the court noted that subsequent decisions, such as Navarac Pty Ltd v Moondancer Holdings Pty Ltd, clarified that the discretion to remove a caveat must be exercised based on the specific circumstances of each case. Murray Riverside also contended that Westpac's interest as a mortgagee would be protected. While this may be true, the court found that the bank's attempts to realise its security over a year and the risk of the sale falling through if the caveat is not removed weighed in Westpac's favour. Murray Riverside's financial situation, with significant debts and limited assets, also influenced the court's decision.

The court concluded that the balance of convenience favoured Westpac. The delay caused by the caveat would prejudice Westpac by reducing the amount recoverable on the mortgage. Additionally, Murray Riverside's failure to bring the debt owed to court or offer to do so was a significant factor against the continuation of the caveat. The court ordered the removal of the caveat, allowing Westpac to proceed with the sale of the properties.

The final orders were that the caveat lodged by Murray Riverside be removed, and the sale of the mortgaged properties by Westpac could proceed.