ANZ v Widin

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Citation: Australia and New Zeland Banking Group Ltd v Widin (1990) 102 ALR 289.

This information can be found in the Textbook: Edgeworth et all, Sackville and Neave's Property Law Cases and Materials, 8th edition, Lexis Nexis, 2008, pp. 294-7 [4.14] or here.

Contents

Background Facts

  • The Plaintiff [Widin] is the creditor of Wardle, who became bankrupt. He is trying to get money back from Wardle's estate.
  • Wardle signed a mortgage with the Defendant [ANZ bank].
  • The mortgage was signed, but several critical details have been left out (like the property subject for mortgage). Wardle also have his (signed) authority for the Defendant to complete the mortgage form, but that also didn't have reference to any specific property.
  • The money went into Wardle's account, but the forms were only completed and dated after.
  • Wardle also owed a lot of money to people, and the creditors petitioned for bankruptcy. Depending on what time the mortgage took effect, it might be void because of this bankruptcy.
  • The Plaintiff is trying to show that the mortgage is void so that he will be higher up on the list of creditors than the Defendant.

Legal issues

  • Contracts For Sale of Land - Land
    • The date on which the mortgage took effect. To determine this, it is necessary to determine if there was any agreement at all. This is done by asking:
    • Whether there was enough of a 'written agreement' here to satisfy the requirement that a sale of land can only be effected by a written agreement?
  • Part Performance - was there an agreement on the basis of part performance?

Judgment

Written agreement

  • If there is enough of a 'memorandum in writing' (ie, some sort of a written agreement or note), an equitable mortgage will arise. This memorandum must at least contain the subject matter of the mortgage (ie, what property is being mortgaged).
  • The entire agreement must be in writing, references to oral conversations are excluded.
  • To constitute a sufficient memorandum, several documents can be combined together as long as the first document (signed by the defendant) refers to the other document which the plaintiff seeks to combine.
    • In this case, the original document (mortgage form) didn't refer to the diary notes of the defendant (which contained the subject matter of the mortgage). Therefore, the diary notes cannot be incorporated.
  • Oral conversation can be used to link written agreements together when they are ambiguous, but not to incorporate terms (that's exactly what the law forbids).
    • In this case, the oral evidence didn't draw a link between the separate documents, because doing so would be more than resolving an ambiguity - it would be incorporating terms and thus not allowed.
  • Regardless, the fact that the form was so incomplete that it didn't have the subject matter of the property means that nothing can be incorporated, no parol evidence are admissible.
  • In conclusion, a memorandum must include the description of the subject matter, the signature of the parties and reference to the transaction. The present memorandum does not satisfy those requirements.

Part Performance

  • Despite the lack of written memoranda regarding the signed but undated and unmarked document, the Defendant endorsed bills and thus became liable on those bills.
  • The Defendant's actions were held to be unequivocally and of their own nature referable to a contract of the general nature alleged by the Defendant.
    • The bank's actions were clearly actions that are only done if there is a mortgage agreement. There is no other reason why the bank would have done them.
  • The Defendant altered its position on the faith of the oral agreement.
  • These acts thus constitute part performance, and there is an agreement.

References

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