Commonwealth Bank of Australia v Horkings

[2000] VSCA 244

Victorian Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Mortgages
2. › All moneys clause
3. › Future advances to one of two co-mortgagors
4. › Whether advances intended to be secured by mortgage
5. › Whether interest of non-consenting co-mortgagor bound
1. Equity
2. › Unconscionable conduct
3. › Guarantee by wife of husband's business debts
4. › Volunteer surety
5. › Whether bank entitled to enforce guarantee and second mortgage
6. › Whether Garcia v National Australia Bank principles satisfied
7. › Whether respondent was volunteer to transaction
1. Appeal
2. › Scope of appeal
3. › Abandonment of appeal against co-defendant
4. › Whether appellant may challenge findings in favour of co-defendant to establish derivative liability of remaining respondent
1. Evidence
2. › Documentary evidence
3. › Books of account
4. › Prima facie evidence
5. › Whether displaced by other evidence
6. › Evidence Act 1958 (Vic), ss 58A, 58B, 58E

Quick Take

A wife who is a nominal officeholder in her husband's company but takes no active interest in the business and receives benefits only at the husband's discretion is a 'volunteer' for the purposes of the Garcia v National Australia Bank unconscionability principles. A bank cannot enforce mortgage security against an innocent co-mortgagor by relying on the fraud of its own officer. An appellant who abandons its appeal against a co-defendant cannot challenge findings in favour of that co-defendant to establish derivative liability in the remaining respondent. The question whether an 'all moneys clause' in a co-mortgagor mortgage secures advances made to one mortgagor without the knowledge or consent of the other was left open.