Murphy v Westpac [2007] NSWSC 170

In this case there was a first and second mortgage. The borrower sought an order that upon payment into Court of a bank guarantee for $250,000 the second mortgagee be ordered to provide a discharge of mortgage.

The Court held that in the absence of the borrower establishing the second mortgage secured nothing the court could not make the order. The court further observed that the tender (if it could be called that) would arguably prevent the second mortgagee arguing or recovering an amount in excess of $250,000.

Bransgroves opines that had an amount been paid into Court of an amount equal or exceeding the second mortgagees claim plus and amount to secure the costs of the second mortgagee (pursuant to Project Research v Permanent Trustee (1990) 5 BPR 97341) then the court would have ordered the second mortgagee to provide a discharge.

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