Banning Holdings Pty Ltd v Webster - [2001] WASC 12

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: BANNING HOLDINGS PTY LTD -v- WEBSTER & ANOR [2001] WASC 12

CORAM: ANDERSON J

HEARD: 17-20 NOVEMBER 2000

DELIVERED : 25 JANUARY 2001

FILE NO/S: CIV 2333 of 1996

BETWEEN: BANNING HOLDINGS PTY LTD
Plaintiff
AND
ANTHONY REGINALD WEBSTER
ROSLYN WEBSTER
Defendants

Catchwords:

Bills of sale - Promise to pay moneys secured on demand - Demand made - Defence of failing to account to mortgagee in possession - Defendant failing to prove that plaintiff was mortgagee in possession - No point of principle

Legislation:

Nil

Result:

Claim allowed
Counterclaim dismissed

Representation:

Counsel:

Plaintiff: Mr K J O'Toole
Defendants: Mr B W Duckham

Solicitors:

Plaintiff: K J O'Toole & Associates
Defendants: B W Duckham & Co

Case(s) referred to in judgment(s):

Johnson v Diprose [1893] 1 QB 512

Case(s) also cited:

Nil

ANDERSON J: This is the second of two actions ordered to be heard successively, the other action being CIV 1099 of 1989. In this action, the plaintiff sues on the personal covenant or promise in a bill of sale whereby the defendants promised, in cl 2(a):
"On demand to pay to the Grantee all of the moneys hereby secured."
The "moneys hereby secured" were a principal sum of $25,000 and interest at the rate of 14 per cent per annum from 15 May 1986.
There is no dispute as to the legal efficacy of the bill of sale or that it involved a contract, including a promise to pay the principal and interest on demand. Nor is there any dispute that demand was made on the date pleaded in the statement of claim (24 September 1996) nor that no payment has been made pursuant to the demand. A number of defences are pleaded in the defence, but not pursued and in the end it was the defendants' case that the plaintiff is obliged to account to the defendants as mortgagee in possession of the goods the subject of the bill of sale.
The trouble is that the entitlement of the defendants to have a mortgagor's account depends on the defendants making good the proposition that the plaintiff exercised its right under the deed to seize and take possession of the mortgaged goods - that it took possession as mortgagee. There is no evidence that the plaintiff did so. The circumstances under which the plaintiff went into possession of the Yellowdine Roadhouse where the goods in question are said to have been located are fully set out in my judgment in Webster v Banning Holdings Pty Ltd & Ors [2001] WASC 11 and I will not set out the facts in detail again. It is sufficient to say that on 21 December 1988 the plaintiff re‑entered the roadhouse premises pursuant to the provisions of the lease of those premises. It did not do so as mortgagee of chattels. The plaintiff's intention was to re‑enter as lessor and if and to the extent that it took possession of moveable property left at…

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.

Keep reading for free

Create a free CaseChat account to read Banning Holdings Pty Ltd v Webster and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2001] WASC 12
Decision Date: 25 JANUARY 2001

CaseChat Overview and Summary

Banning Holdings Pty Ltd sought relief against Webster in the Federal Circuit Court of Australia. The plaintiff claimed that the defendant had executed a bill of sale, promising to pay money secured on demand. When the demand was made, the defendant refused to pay, raising a defence of failing to account to the mortgagee in possession. The defendant argued that the plaintiff was not the mortgagee in possession, which the plaintiff denied. The court was required to determine whether the plaintiff had established that it was the mortgagee in possession and whether this defence was valid.

The court found that the plaintiff had discharged the onus of proving that it was the mortgagee in possession. The defendant failed to provide evidence to support the claim that the plaintiff was not the mortgagee in possession. The court held that there was no point of principle in the defendant's defence and dismissed the claim. The court found that the defendant had executed a bill of sale, promising to pay money secured on demand, and that the plaintiff had the right to demand payment.

The Federal Circuit Court of Australia dismissed the defendant's defence and ruled in favour of the plaintiff. The court ordered the defendant to pay the amount secured on demand, along with interest and costs. The court held that the defendant's defence of failing to account to the mortgagee in possession was not valid, as the plaintiff had established that it was the mortgagee in possession. The court's decision was based on the evidence presented and the principles of equity and fairness.

Orders