Bank of New South Wales v Adams and Anor

[1982] 2 NSWLR 659

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Between: Bank of New South Wales
And: Adams and Anor

Court:

Judge: Helsham CJ in Eq

Subject References:
TORRENS SYSTEM
MORTGAGES
Power of sale
Power exercised
Receipt of moneys
Notice of second mortgage held
Mortgagee trustee
Solicitor acting for mortgagee constructive trustee
TRUSTS
Constructive trusts
Solicitor client relationship
Mortgagee sale by client
Statutory power
Notice of second mortgage held
Solicitor constructive trustee
Liability for breach of trust
LEGAL PRACTITIONERS
SOLICITOR
Client's money
Disbursement of
Client mortgagee vendor under statutory power of sale
Notice of second mortgage held
Moneys paid to client at client's direction
Solicitor constructive trustee
Solicitor liable for breach of trust

Legislative References:
Real Property Act, 1900 - s 58(3)
Legal Practitioners Act, 1898 - s 41(1)

Case References:
Bank of New South Wales v Vale Corporation (Management) Ltd (In Liq) - (Court of Appeal, 21st October, 1981, unreported)
Banner v Berridge - (1881) 18 Ch D 254
Barnes v Addy - (1874) 9 Ch App 244
Bell, Re - (1886) 34 Ch D 462
Carl-Zeiss-Stiftung v Herbert Smith & Co (No 2) - [1969] 2 Ch 276
Consul Development Pty Ltd v DPC Estates Pty Ltd - (1975) 132 CLR 373
Eyre-Williams, Re - [1923] 2 Ch 533
Gray v Johnston - (1868) LR 3 HL 1
Lee v Sankey - (1873) LR 15 Eq 204
Morrison, Re: Bennell v Smith - [1962] Tas SR 337
Selangor United Rubber Estates Ltd v Cradock (No 3) - [1968] 1 WLR 1555; [1968] 2 All ER 1073
Stewart v Strevens - [1976] 2 NSWLR 321
Thomson's Mortgage Trusts, Re - [1920] 1 Ch 508
West London Commercial Bank v Reliance Permanent Building Society - (1885) 29 Ch D 954

Hearing date: 15-16 June 1982
Judgment date: 13 December 1982

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ORDER

The plaintiff is entitled to a remedy against the second defendant as well as the first.

Orders accordingly.