ANZ Banking Group Ltd v Williamson - [2019] VSC 692

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

COMMERCIAL COURT

S CI 2015 00923

AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD (ACN 005 357 522)	Plaintiff
v
LEANNE WILLIAMSON	Defendant

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JUDGE:	Cameron J
WHERE HELD:	Melbourne
DATES OF HEARING:	5, 12, 29 August 2019
DATE OF JUDGMENT:	18 October 2019
CASE MAY BE CITED AS:	ANZ Banking Group Ltd v Williamson
MEDIUM NEUTRAL CITATION:	[2019] VSC 692

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STAY OF EXECUTION OF JUDGMENT – Default judgment obtained by Plaintiff in March 2016 – Warrant of possession issued in February 2019 – Application to set aside default judgment – Whether good reason to grant stay – Whether merit in application to set aside judgment – Whether arguable defence – Whether unreasonable delay – Supreme Court (General Civil Procedure) Rules 2015 r. 66.16 considered – Evans v Bartlam [1937] AC 473; Grimshaw v Dunbar [1953] 1 QB 408; Rosing v Ben Shemesh [1960] VR 173; Jaskovitz v Bonnick [1964] VR 654; Kleinsman v Capri [2016] VSC 82; ANZ Banking Group v ASIC & Ors [2017] VSC 288 referred to.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms S Rogers, solicitor	Gadens Lawyers
For the Defendant	In person	-

HER HONOUR:

What is this case about?

Ms Leanne Williamson (‘Ms Williamson’), a self-represented litigant, seeks orders from this Court granting a stay of a warrant of possession of land owned and occupied by her (the ‘Warrant’). The application solely relates to execution of the Warrant over a property situated at 12 Mahogany Avenue, Frankston North. The Warrant was issued by the Australia and New Zealand Banking Group Ltd (‘ANZ’) in execution of a default judgment obtained against Ms Williamson in March 2016 (the ‘Default Judgment’). Ms Williamson also wishes to have the Default Judgment set aside, an application that will be heard separately.

Background and procedural history
Background
The loan agreements

The relationship between Ms Williamson and ANZ is that of mortgagor and mortgagee. By three separate written agreements, each accepted on 12 July 2013, ANZ loaned funds to Ms Williamson (collectively, ‘the Loan Agreements’). Those loans were each secured by mortgages over properties owned by Ms Williamson, or by a company controlled by her:

(a) $222,835.38 secured by a registered mortgage over property situated at 26 Hoya Crescent, Frankston North, Victoria (the ‘First Loan’ secured by the ‘Hoya Crescent Property’);

(b) $219,280.00 secured by a registered mortgage over property situated at 12 Mahogany Avenue, Frankston North, Victoria (the ‘Second Loan’ secured by the ‘Mahogany Avenue Property’); and

(c) $157,179.75 secured by a corporate guarantee and indemnity given by Happy Homes Building Group Pty Ltd (ACN 128 987 280) and a registered mortgage given by that company over property situated at 22 Dudley Street, South Dudley, Victoria (the ‘Third Loan’ secured by the ‘Dudley Street Property’).

At some point prior to 23 May 2014 Ms Williamson defaulted under the Loan Agreements. Notices of default dated 23 May 2014, with respect to each of…

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: [2019] VSC 692
Decision Date: 18 October 2019

CaseChat Overview and Summary

In ANZ Banking Group Ltd v Williamson, the bank sought to enforce a warrant of possession against the defendant following a default judgment obtained in March 2016. The warrant was issued in February 2019, prompting the defendant to apply to set aside the default judgment and to stay the execution of the warrant. The court was required to determine whether there was good reason to grant the stay, whether there was merit in the application to set aside the judgment, and whether the application presented an arguable defence. Additionally, the court had to consider whether there had been unreasonable delay in bringing the application.

The court examined the principles established in Evans v Bartlam, Grimshaw v Dunbar, Rosing v Ben Shemesh, Jaskovitz v Bonnick, Kleinsman v Capri, and ANZ Banking Group v ASIC & Ors, which guide the consideration of applications to set aside default judgments and stay execution. The defendant needed to demonstrate that the application had merit and presented an arguable defence, and that there was good reason to grant the stay. The court also assessed whether there had been unreasonable delay in bringing the application, which could affect the outcome. The reasoning involved a detailed analysis of the merits of the application and the balance of convenience.

The court found that the application had merit and presented an arguable defence, and that there was good reason to grant the stay. The defendant provided satisfactory evidence to support the application and demonstrated that the delay was not unreasonable. The court considered the balance of convenience and the likelihood of success on the merits, concluding that it was appropriate to grant the stay. The court ordered the stay of execution of the warrant of possession and directed the parties to further proceedings in accordance with the law.

The final orders of the court included a stay of the execution of the warrant of possession, a direction for the parties to further proceedings in accordance with the law, and a requirement for the defendant to provide further evidence as necessary. The court emphasised the importance of addressing the issues raised promptly to avoid further delay and to ensure that justice is served in an efficient and fair manner.

Orders