Widin as Trustee of the bankrupt Estate of Wardle v Australian and New Zealand Banking Group Limited

William John Widin, as Trustee of the bankrupt Estate of Wardle, sought special leave to appeal from a decision of the Full Court of the Federal Court of Australia. The dispute concerned the effective date of a mortgage granted by the bankrupt to the Australian and New Zealand Banking Group Limited (ANZ). The Trustee argued that the mortgage should be considered effective from an earlier date, which would have implications under the *Bankruptcy Act 1966* (Cth). ANZ contended for a later effective date.

The primary legal issue before the High Court was whether the Full Court had erred in its determination of the effective date of the mortgage. This involved considering whether the granting of a bank bill facility, the endorsement and discounting of bills, and the crediting of a bank account constituted part performance of an agreement for a mortgage, and whether certain mortgage documents, executed in blank, could be considered in assessing part performance. The Court was also required to consider the relevance of the parties' intentions and the specific requirements of the *Bankruptcy Act* concerning the timing of such transactions.

The applicant argued that the Full Court's finding that the bank bill facility and associated actions amounted to part performance was contrary to authority, particularly *Chaproniere v Lambert*. The applicant contended that the mortgage documents, being executed in blank and lacking specific details of the property or the facility, could not be relied upon as part of part performance. The applicant submitted that these documents were insufficient to satisfy the Statute of Frauds and that the conduct relied upon did not unequivocally refer to the alleged oral mortgage. The Court noted that the dispute ultimately hinged on the date from which the mortgage took effect, which in turn depended on the intention of the parties and the application of relevant legal tests.