Westpac v Victor Warren Ollis [2008] NSWSC 824

In this case a large a sum of money was stolen from Westpac. Some of that money was used by the fraudster to pay out another lender’s mortgages. In previous proceedings Westpac had successfully obtained orders that it had a charge (similar to a mortgage) over the property by virtue of having supplied the discharge funds. The purchaser of the property claimed it had priority, as a purchaser for value with a dealing in registrable form under s 43A of the Real Property Act, and as such, had an equitable interest, while Westpac was the holder of a “mere equity”. Justice Einstein found, however, that the “purchaser” had not actually paid any money for the property and was hence not a purchaser for value. Thus s 43A did not apply, and the purchaser did not even have an equitable interest. His Honour further found that Westpac had a full equitable interest and not a “mere equity” as the court’s order did not create the charge but merely declared the pre-existing state of affairs, being that Westpac, having supplied the money for the discharges, was the beneficiary under an automatic trust that arose as soon as its money was applied to discharge the mortgages.

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