Finlayson v Indigenous Business Australia [2014] VSCA 95

In Finlayson v Indigenous Business Australia [2014] VSCA 95 the respondent had obtained a judgment for recovery of possession of land on the basis that the applicant had defaulted under the terms of his mortgage, and the applicant sought an order to set aside the decision, but it was dismissed. He sought leave to appeal this dismissal on the grounds that there was no evidence of any loan agreement or any mortgage and that the loan was a mere bookkeeping entry without any consideration, relying on the US Credit River decision First National Bank of Montgomery v Daly. The court noted:

“The defendant in that case submitted that the plaintiff had created the money and credit upon its own books by a bookkeeping entry and alleged a failure of consideration for the relevant mortgage deed.  This decision has been overruled and has been described by this Court as ‘worthless … authority’.

(See  Permanent Custodians Ltd v Virgin Investments Pty Ltd [2009] VSC 429, [50] (J Forrest J); see also National Australia Bank Limited v McFarlane [2002] VSC 116, [8] (Byrne J), which was cited with approval in Walter v National Australia Bank Limited [2004] VSC 36, [246] (Dodds-Streeton J). For the overruling of Daly in the United States, see Zurn v Northwestern National Bank of Minneapolis, 170 NW 2d 600 (Minn, 1969);  Daly v Savage State Bank 171 NW 2d 218 (Minn, 1969);  see also Sneed v Chase Home Finance LLC WL 1851674 (SD Cal, No 07CV0729-LAB (AJB), 27 June 2007), 3-4.)

I agree.  In my view, this aspect of Mr Finlayson’s argument is frivolous.  There is no basis for any suggestion that the loan was a mere bookkeeping entry or that the sums were not advanced by IBA.”

Click to access finlayson-v-indigenous-business-australia-2014-vsca-95.pdf


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