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Annesley v Westpac Banking Corporation

Annesley v Westpac Banking Corporation

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Case Copied 10 June 2016 53 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S CI 2016 01183

PAUL DAVID ANNESLEY	Plaintiff
v
WESTPAC BANKING CORPORATION (ABN 33 007 457 141) AND OTHERS (according to the schedule attached)	Defendant

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JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	8 June 2016
DATE OF JUDGMENT:	10 June 2016
CASE MAY BE CITED AS:	Annesley v Westpac
MEDIUM NEUTRAL CITATION:	[2016] VSC 323

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PRACTICE AND PROCEDURE – Defendant’s application for summary judgment pursuant to s 63 of the Civil Procedure Act 2010 –Plaintiff claims to be a tenant of a property in respect of which the first defendant bank is mortgagee in possession – Plaintiff also claims to be purchaser under a completed contract of sale ‑ First defendant recovered possession by order of the Court in 2014 – Warrant for possession executed in February 2016 – Plaintiff claims to have been deprived of access to and equity in the property, damages and other injunctive relief – Writ not served – First defendant applies to dismiss the proceeding against it – Whether plaintiff’s claim has any real prospects of success – No real prospect of success of plaintiff establishing tenancy agreement in respect of the property – Tenancy agreement a sham ‑ Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158; (2013) 42 VR 27; Campaspe Investments Pty Ltd v PBP Accounting Solutions Pty Ltd [2015] VSC 26; Snook v London & West Riding Investments Ltd [1967] 2 QB 786; Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471 – Section 216 Residential Tenancies Act1997.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No Appearance
For the First Defendant	Mr S D Hay	Gadens Lawyers
For the Second Defendant	No Appearance
For the Third Defendant	No Appearance

HIS HONOUR:

Introduction

The first defendant (‘Westpac’) applies by summons filed 12 April 2016 for the claim brought against it by the plaintiff to be summarily dismissed pursuant to ss 62 and 63 of the Civil Procedure Act 2010 (‘CPA’), alternatively, that there be judgment for Westpac or a permanent stay of the proceeding pursuant to r 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’). Westpac also applies, in the further alternative, for the statement of claim endorsed on the writ to be struck out pursuant to r 23.02 of the Rules.

The third defendant (‘Ms Hou’) is the registered proprietor of the property at 349 Nepean Highway, Brighton East, Victoria (‘the Property’). The second defendant (‘Mr Kanakaridis’) was previously a registered proprietor of that Property with Ms Hou and had, with her, borrowed moneys from Westpac secured by a mortgage over the Property. The borrowers defaulted under the mortgage and on 2 April 2014 this Court ordered that Westpac recover possession of the Property. Appeals from that order were unsuccessful.

The Sheriff executed a…

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] VSC 323
Decision Date: 10 June 2016

CaseChat Overview and Summary

In the matter of Annesley v Westpac Banking Corporation, the plaintiff sought to establish a tenancy in respect of a property, which was the subject of a mortgage held by the defendant bank. The plaintiff also claimed to be the purchaser of the property under a completed contract of sale, alleging deprivation of access, equity, and damages due to the bank's possession of the property. The bank, having obtained a warrant for possession in 2014 and executing it in February 2016, applied for summary judgment under section 63 of the Civil Procedure Act 2010, seeking to dismiss the plaintiff's claim on the basis that it had no real prospects of success.

The court was required to determine whether the plaintiff's claim had any real prospects of success, particularly in establishing a valid tenancy agreement in respect of the property. The bank argued that any purported tenancy agreement was a sham, relying on several precedents, including Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd, Campaspe Investments Pty Ltd v PBP Accounting Solutions Pty Ltd, Snook v London & West Riding Investments Ltd, and Equuscorp Pty Ltd v Glengallan Investments Pty Ltd. The court also considered section 216 of the Residential Tenancies Act 1997 in its analysis.

The court found that the plaintiff could not establish a valid tenancy agreement due to the lack of evidence supporting the existence of a genuine agreement. The court noted that the purported tenancy agreement was a sham, as the plaintiff could not demonstrate any real intention to enter into a tenancy. The court relied on the cited precedents to conclude that the plaintiff's claim had no real prospects of success. Consequently, the court granted the bank's application for summary judgment and dismissed the plaintiff's proceeding against it.

Orders