Anderson v Westpac Banking Corporation - [2016] VSCA 172

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0032
S APCI 2016 0081

LENA ANNIKA ANDERSON	Applicant /Cross Respondent
V
WESTPAC BANKING CORPORATION (ABN 33 007 457 141)	Respondent / Cross Applicant

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JUDGES:	WHELAN, McLEISH JJA and CAVANOUGH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 July 2016
DATE OF JUDGMENT:	20 July 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 172
JUDGMENT APPEALED FROM:	[2016] VCC 119 (Judge Cosgrave)

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PRACTICE AND PROCEDURE — Application for leave to appeal against order granting summary judgment for possession of property — Order for possession already stayed — Imminent trial —Application adjourned.

PRACTICE AND PROCEDURE — Cross application for leave to appeal against order dismissing application for summary judgment for debt — Order effectively granting unconditional leave to defend — Whether any right to appeal — Supreme Court Act 1986 s 17A(6) — County Court Act 1958 s 74 — Imminent trial — Interests of justice — Cross application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant / Cross Respondent	In person
For the Respondent / Cross Applicant	Mr S D Hay	Gadens Lawyers

WHELAN JA:

In 2009, St George Bank Limited, which for all relevant purposes is now the plaintiff, Westpac Banking Corporation (‘the bank’), made two loans to the defendant, Ms Anderson. The loans were for $168,000 and $112,000, and were secured by a mortgage over a unit which she had bought in Reservoir (‘the property’).

In 2014 the bank received a letter from a firm of solicitors claiming that Ms Anderson owed Owners Corporation PS621012F (‘the owners corporation’) the sum of $22,369.68. Without consulting Ms Anderson, the bank paid that sum to the claimant and debited Ms Anderson’s first loan account. Ms Anderson was most unhappy with this action. She stopped paying the instalments due on her loans. In January 2015 the bank gave Ms Anderson a default notice and in March 2015 it began a proceeding in the County Court seeking possession of the property.

Ms Anderson defended the bank’s claim and brought a counterclaim based upon what she claimed was the wrongful debiting of the sum of $22,369.68.

In August 2015 the bank unsuccessfully applied for summary judgment before a judge in the County Court. The bank was unsuccessful because of the dispute over the debited sum of $22,369.68.

In October 2015 the bank reversed the $22,369.68 debit and the interest which had been charged on that sum.

The bank then amended its claim so as to add claims for recovery of $197,549.30 on the first loan and $106,751.78 on the second loan (as at 16 October 2015).

The bank made a second application for summary judgment seeking both possession of the property and judgment for the sums allegedly due on the loans. That second application was heard by the same judge who had heard the first.[1]
[1]There is a question as to whether the bank ought to have been permitted to make the second application for summary judgment, at least insofar as it related to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] VSCA 172
Decision Date: 20 July 2016

CaseChat Overview and Summary

Anderson applied for leave to appeal against an order granting summary judgment for possession of property, while Westpac Banking Corporation applied for leave to appeal against an order dismissing its application for summary judgment for debt. Both applications came before the Supreme Court, which stayed the order for possession and was imminently preparing for a trial. The court was required to decide whether Anderson had the right to appeal the order granting summary judgment for possession and whether Westpac had the right to appeal the dismissal of its application for summary judgment for debt.

The court noted that the order granting summary judgment for possession was effectively an order granting unconditional leave to defend. The court held that, in the interests of justice and due to the imminent trial, Anderson did not have the right to appeal the order granting summary judgment for possession. Similarly, the court held that Westpac did not have the right to appeal the dismissal of its application for summary judgment for debt. The court dismissed both applications for leave to appeal, finding that the orders were effectively interlocutory in nature and that the appeals would not serve the interests of justice.

The court emphasised that the appeals would have caused significant delay and would have disrupted the imminent trial preparations. The court concluded that the orders were not final or appealable, and that the appeals would not serve the interests of justice. The applications for leave to appeal were dismissed.

Orders