Kenney v Commonwealth Bank of Australia

[2016] WASCA 44

Western Australia Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Real Property
2. › Mortgages
3. › Foreclosure
4. › Land under Transfer of Land Act 1893 (WA)
5. › Whether court has power to order foreclosure under Property Law Act 1969 (WA), s 53
6. › Whether s 53 confers power or merely states effect of foreclosure order
7. › Property Law Act 1969 (WA), ss 53, 55(2)
8. › Transfer of Land Act 1893 (WA), ss 121, 122
1. Real Property
2. › Mortgages
3. › Sale in lieu of foreclosure
4. › Whether s 55(2) of Property Law Act 1969 (WA) enables court to order foreclosure in lieu of sale
5. › Whether mortgagor may apply for foreclosure order under s 55(2)
6. › Property Law Act 1969 (WA), s 55(2)
1. Practice and Procedure
2. › Summary judgment
3. › Principles applicable
4. › Whether defendant has arguable defence
5. › Inconsistent accounts by defendant
6. › Whether court must accept uncritically every statement in affidavit
1. Contract
2. › Formation
3. › Acceptance by conduct
4. › Whether acceptance of loan offer may be inferred from utilisation of funds advanced
5. › Whether borrower on notice of terms accepted those terms by drawing down funds

Quick Take

Section 53 of the Property Law Act 1969 (WA) does not confer power on the court to order foreclosure; it merely states the effect of a foreclosure order. For land under the Transfer of Land Act 1893 (WA), foreclosure is an administrative process under ss 121-122 of that Act, commenced by application to the Commissioner of Titles, and may only be initiated by the mortgagee or its transferee. Section 55(2) of the Property Law Act permits sale in lieu of foreclosure, not foreclosure in lieu of other relief. A borrower who utilises funds advanced on stated terms, with knowledge of those terms, will be taken to have accepted those terms.