Anthony, a former recruitment manager, received a large redundancy package following a company restructure and uses it to purchase a run-down farm in south-western WA. The transfer is registered under the Transfer of Land Act 1893 (WA) (the Act). Anthony completes a viticulture course in anticipation of his retirement and plans to turn the property into a vineyard. He borrows $500,000 and secures it on the property by way of first mortgage to McGoo Finance in order to carry out capital works. McGoo Finance duly registers its mortgage in accordance with the Act. Anthony eventually becomes a successful winemaker, the property has produced a famous 2021 Shiraz which proved popular with international tourists. However, sometime later when undertaking aerial spraying of Anthony's vines, the pilot of the plane oversprays some adjoining farming properties causing considerable damage to their farm crops. Anthony is liable for this damage (for reasons not relevant to this question). Anthony is left in a grave financial position and defaults on his mortgage to McGoo Finance. McGoo Finance gives Anthony notice under section 106 of the Act, and proceeds to a mortgagee's sale by auction. McGoo Finance appoints a friend of its managing director, Mal Turnbull, a real estate agent, to conduct the sale. Turnbull is a specialist in selling industrial sites and small businesses. Turnbull advertises the property once in the Australian Financial Times ('the most widely read paper in the country', he says) on Good Friday, referring to it as 'a former farm with great potential'. No mention is made of the property's actual usage as a vineyard. No advertisement is made locally or in any rural newspapers. Ultimately, the auction is attended by three persons and is sold to M & L Pty Ltd, a company of which Mal and his wife are the sole shareholders and directors. The purchase price is significantly below market valuation of the property.

 

Advise Anthony of his rights as mortgagor, and, in particular, whether the sale to M & L Pty Ltd should be set aside. PLEASE NOTE: In answering this question, students are to assume that all the relevant notice requirements pursuant to section 106 of the Act have been met by McGoo Finance.

 

PLEASE ALSO NOTE:

The response must be a formal legal letter of advice

Please try and stick to 2500 words or less if possible

MUST include reference list and in-text citation.

AGLC 4th EDITION REFERENCING

Tips for letter of advice:

 The letter should be addressed to your client.

The letter should be written in a formal business manner and should adopt a logical structure. Please write in full sentences and ensure you have proof read your assignment thoroughly.

You should briefly restate the advice that you have been asked to give (outline the scope of your advice).  You should deal with each of the issues you have been asked to advise on.

In dealing with the issues you MUST refer to the relevant cases/legislation. Reference should be made to primary sources NOT the lecture notes, internet search engines or Wikipedia. Cases should be cited correctly in italics and with their full citation following.

Conclude on the issues you have been asked to advise. If you feel the area is ambiguous then you should state this and provide details of further information you require from your client. Alternatively, you could conclude on balance what you think your advice would be.

You should provide your client with your details/contact number in case they need to contact you further regarding your advice.

You should pay particular attention to describing how the cases/legislation are similar to, or can be distinguished from, your client's situation.