Appleyard v Westpac Banking Corporation - [2017] QCA 316

SUPREME COURT OF QUEENSLAND

CITATION:

Appleyard & Anor v Westpac Banking Corporation [2017] QCA 316

PARTIES:

KENNETH ARNOLD APPLEYARD
(first appellant)
ROSEMARIE MAGRET APPLEYARD
(second appellant)
v
WESTPAC BANKING CORPORATION
ABN 33 007 457 141
(respondent)

FILE NO/S:

Appeal No 9432 of 2016
DC No 142 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Southport – Unreported, 19 August 2016 (Wall QC DCJ)

DELIVERED ON:

19 December 2017

DELIVERED AT:

Brisbane

HEARING DATE:

23 March 2017

JUDGE:

Fraser and Philippides and McMurdo JJA

ORDERS:

1. The appeal be allowed to the extent only of varying paragraph 4 of the order made in the District Court on 19 August 2016 by omitting the text “, on the indemnity basis”.

2. Otherwise, the appeal should be dismissed with costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – ORDERS SET ASIDE OR VARIED – where the appellant appealed against an order made by a judge of the District Court that they deliver to the respondent bank possession of land – where the bank made a contract either with Mr and Mrs Appleyard or with Mr Appleyard – where the bank later extended credit to Mr Appleyard under another contract – where it was common ground that the National Credit Code applies to the former, but not to the latter – where the bank also entered into a contract for a business overdraft with Mr Appleyard – where Mrs Appleyard had guaranteed one of the earlier contracts, but not the contract for the business overdraft – where Mr Appleyard fell into default under each of the contracts – where Mrs Appleyard defaulted under her guarantee – whether the National Credit Code precludes the bank from enforcing its mortgage in circumstances in which the mortgage secures obligations under different loan contracts

National Consumer Credit Protection Act 2009 (Cth), schedule 1, National Credit Code, s 5, s 7(2), s 88

Bahadori v Permanent Mortgages Pty Ltd (2008) 72 NSWLR 44; [2008] NSWCA 150, cited
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, cited

COUNSEL:

The first appellant appeared on his own behalf and on behalf of the second appellant
E J Goodwin for the respondent

SOLICITORS:

The first appellant appeared on his own behalf and on behalf of the second appellant
Kemp Strang Lawyers for the respondent

FRASER JA: Mr and Mrs Appleyard have appealed against an order made by a judge of the District Court that they deliver to the respondent bank possession of land of which they are the registered owners as joint tenants.

The principal issue in the appeal is whether the National Credit Code[1] precludes the bank from enforcing its mortgage in circumstances in which the mortgage secures obligations under different loan contracts, only one of which is regulated by the Code, and the bank relies upon a default only under a loan contract that is not…

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: [2017] QCA 316
Decision Date: 19 December 2017

CaseChat Overview and Summary

In the appeal of Appleyard v Westpac Banking Corporation, the primary dispute concerned the enforcement of a mortgage over a property held by Mr and Mrs Appleyard, following a default by Mr Appleyard on several financial agreements. The respondent, Westpac Banking Corporation, sought an order for possession of the property in the District Court of Queensland. The appellants, Mr and Mrs Appleyard, challenged this decision on appeal, questioning the applicability of the National Credit Code to the mortgage and the enforcement of the bank's rights.

The legal issues before the court were twofold. First, it was necessary to determine whether the National Credit Code applied to the mortgage securing the obligations under the various loan contracts entered into by Mr Appleyard with the bank. Second, the court had to consider whether the Code precluded the bank from enforcing its mortgage where the obligations secured were under different loan contracts. The appellants argued that the Code applied to the initial mortgage and the subsequent extensions of credit, and that this precluded the bank from enforcing its mortgage over the property in the absence of a specific indemnity arrangement.

The court held that while the National Credit Code applied to the original mortgage and the first extension of credit, it did not apply to the subsequent business overdraft agreement. The court found that the Code did not preclude the bank from enforcing its mortgage, even though it secured obligations under different loan contracts. The court clarified that the indemnity requirement only applied to the manner in which the mortgage was enforced, not to the bank's right to enforce the mortgage itself. The appeal was allowed to the extent of varying the order to remove the indemnity requirement, and otherwise dismissed with costs.

The final orders of the court were to allow the appeal in part by omitting the text “, on the indemnity basis” from paragraph 4 of the order made in the District Court on 19 August 2016. The appeal was otherwise dismissed with costs. This decision confirmed the bank's right to enforce its mortgage over the property, subject to the terms of the various loan agreements and the applicable legal framework.

Orders

Orders of the court

1. The appeal be allowed to the extent only of varying paragraph 4 of the order made in the District Court on 19 August 2016 by omitting the text “, on the indemnity basis”.

2. Otherwise, the appeal should be dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Appleyard & Anor v Westpac Banking Corporation [2017] QCA 316
PARTIES:	KENNETH ARNOLD APPLEYARD (first appellant) ROSEMARIE MAGRET APPLEYARD (second appellant) v WESTPAC BANKING CORPORATION ABN 33 007 457 141 (respondent)
FILE NO/S:	Appeal No 9432 of 2016 DC No 142 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Southport – Unreported, 19 August 2016 (Wall QC DCJ)
DELIVERED ON:	19 December 2017
DELIVERED AT:	Brisbane
HEARING DATE:	23 March 2017
JUDGE:	Fraser and Philippides and McMurdo JJA
ORDERS:	1. The appeal be allowed to the extent only of varying paragraph 4 of the order made in the District Court on 19 August 2016 by omitting the text “, on the indemnity basis”. 2. Otherwise, the appeal should be dismissed with costs.
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – ORDERS SET ASIDE OR VARIED – where the appellant appealed against an order made by a judge of the District Court that they deliver to the respondent bank possession of land – where the bank made a contract either with Mr and Mrs Appleyard or with Mr Appleyard – where the bank later extended credit to Mr Appleyard under another contract – where it was common ground that the National Credit Code applies to the former, but not to the latter – where the bank also entered into a contract for a business overdraft with Mr Appleyard – where Mrs Appleyard had guaranteed one of the earlier contracts, but not the contract for the business overdraft – where Mr Appleyard fell into default under each of the contracts – where Mrs Appleyard defaulted under her guarantee – whether the National Credit Code precludes the bank from enforcing its mortgage in circumstances in which the mortgage secures obligations under different loan contracts National Consumer Credit Protection Act 2009 (Cth), schedule 1, National Credit Code, s 5, s 7(2), s 88 Bahadori v Permanent Mortgages Pty Ltd (2008) 72 NSWLR 44; [2008] NSWCA 150, cited Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, cited
COUNSEL:	The first appellant appeared on his own behalf and on behalf of the second appellant E J Goodwin for the respondent
SOLICITORS:	The first appellant appeared on his own behalf and on behalf of the second appellant Kemp Strang Lawyers for the respondent