Bayly v Westpac Banking Corporation - [2020] QCA 148

SUPREME COURT OF QUEENSLAND

CITATION:

Bayly v Westpac Banking Corporation [2020] QCA 148

PARTIES:

DALLAS HENRY BAYLY
(appellant)
v
WESTPAC BANKING CORPORATION
ABN 33 007 457 141
(respondent)

FILE NO/S:

Appeal No 1892 of 2020
DC No 1030 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane – Unreported, 29 January 2020 (Koppenol DCJ)

DELIVERED ON:

14 July 2020

DELIVERED AT:

Brisbane

HEARING DATE:

2 June 2020

JUDGES:

Sofronoff P and Fraser JA and Bradley J

ORDER:

The appeal is dismissed with costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT – FOR DEBT OR LIQUIDATED DEMAND OR FOR POSSESSION OF LAND – where the respondent sued the appellant under a mortgage and successfully applied for summary judgment – where the appellant had delivered a promissory note to the respondent – where the respondent did not agree to accept the promissory note in satisfaction of the debts secured by the mortgage – where the appellant nonetheless claimed he had discharged his liability to the respondent under the mortgage by delivering the promissory note – whether the learned primary Judge erred in finding the appellant had no real prospect of succeeding in his defence based on the contention that his debt to the respondent had been extinguished as a result of the delivery of the promissory note

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT – FOR DEBT OR LIQUIDATED DEMAND OR FOR POSSESSION OF LAND – where the respondent sued the appellant under a mortgage and successfully applied for summary judgment – where the appellant entered into the mortgage with the respondent’s predecessor in law – where all of the assets and liabilities of the respondent’s predecessor in law became the assets and liabilities of the respondent without any transfer, conveyance or assignment on 1 March 2010, pursuant to the Financial Sector (Business Transfer and Group Restructure) Act 1999 (Cth) – where the appellant nonetheless claimed the respondent was not entitled to enforce the mortgage because he had not entered into any contract with the respondent – whether the learned primary Judge erred in finding the appellant had no real prospect of succeeding in his defence based on his challenge to the standing of the respondent

Financial Sector (Business Transfer and Group Restructure) Act 1999 (Cth), s 20, s 22

Byrne v Javelin Asset Management Pty Ltd [2016] VSCA 214, cited
Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523, applied
Fielding & Platt Ltd v Najjar [1969] 1 WLR 357, distinguished

COUNSEL:

The appellant appeared on his own behalf
D M Turner for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Minter Ellison for the respondent

SOFRONOFF P: I agree with Bradley J.
FRASER JA: I agree with the reasons for…

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: [2020] QCA 148
Decision Date: 14 July 2020

CaseChat Overview and Summary

In Bayly v Westpac Banking Corporation, Mr Bayly appealed against a decision of the District Court of Queensland, which dismissed his defence to an action brought by Westpac. Westpac had issued proceedings against Mr Bayly under a mortgage on a property, seeking possession of the property and a debt. Mr Bayly argued that his debt was extinguished when he delivered a promissory note to Westpac, and that Westpac did not have standing to bring the action as the mortgage was held by St George Bank, Westpac's predecessor in title. The primary judge found that Mr Bayly had no real prospect of success in either defence and dismissed the defence with costs. Mr Bayly appealed against that decision.

The court considered two legal issues. First, whether the primary judge erred in finding that Mr Bayly had no real prospect of success in his defence based on his contention that his debt to Westpac had been extinguished by delivering a promissory note. Second, whether the primary judge erred in finding that Mr Bayly had no real prospect of success in his defence based on his challenge to Westpac's standing to bring the action.

The court found that the primary judge did not err in finding that Mr Bayly had no real prospect of success in his defence based on the promissory note. The court held that the promissory note did not extinguish Mr Bayly's debt as it did not contain an express term that it would do so, and Westpac did not agree to accept the promissory note in satisfaction of the debt. The court also found that the primary judge did not err in finding that Mr Bayly had no real prospect of success in his defence based on his challenge to Westpac's standing to bring the action. The court held that the transfer of St George's business to Westpac on 1 March 2010 did not require a formal transfer, conveyance or assignment of the mortgage, and Westpac had standing to bring the action.

The appeal was dismissed with costs.

Orders

Orders of the court

The appeal is dismissed with costs.

Background

Background to the litigation

Before considering the written and oral submissions about the appeal, it is convenient to set out the background facts.Background On 14 August 2006, Mr Bayly accepted two written offers from St George Bank Limited (St George). The first was an offer to lend $128,400 to Mr Bayly as a residential investment loan for a business purpose, secured by a first priority registered mortgage over the unit. The offer provided for the interest on the loan to be 0.7% per annum below the “residential investment Low Doc Variable Rate”. The other offer was also to lend $128,400 to Mr Bayly as a residential investment loan for a business purpose, secured by a first priority registered mortgage over the unit. It provided for the interest on the loan to be a fixed interest rate of 7.19% per annum for three years from the settlement date and afterwards at the “residential investment Low Doc Variable Rate”. Each of the two loans offered would require Mr Bayly to make 360 repayments over a loan term of 30 years. Mr Bayly signed each of the offers and returned them to St George. By signing them, he entered into two loan agreements with St George. Also on 14 August 2006, Mr Bayly executed the Mortgage charging his estate in the unit with the repayment or payment to St George of the amount owing from time to time. On 21 August 2006, St George advanced $128,400 to Mr Bayly pursuant to the first loan agreement and the same amount pursuant to the second loan agreement. These amounts are shown on the two home loan account statements issued to Mr Bayly by St George on 26 August 2006. On 20 January 2010, St George and Westpac provided a statement (the section 20 statement) to the Australian Prudential Regulation Authority (APRA) under s 20(1) of the then Financial Sector (Business Transfer and Group Restructure) Act 1999 (Cth) (the Transfer Act), which recorded agreements about matters connected with the transfer of the business of St George to Westpac. On 18 February 2010, APRA issued a certificate of transfer recording the voluntary transfer approval under the Transfer Act in respect of the total transfer of business from St George to Westpac, stating that the transfer was to take effect on 1 March 2010. The same day, APRA also approved the section 20 statement. From 16 September 2016, Mr Bayly ceased making repayments of the loans. By 11 December 2018, Mr Bayly was in arrears: $21,932 under the first loan agreement; and $24,863 under the second loan agreement. On 12 December 2018, Westpac, by its solicitors, gave Mr Bayly a notice. The solicitors signed the notice as solicitors and agents for “St George Bank Ltd – a division of Westpac Banking Corporation”. It was both a notice of exercise of power of sale under s 84 of the Property Law Act 1974 (Qld) (the PLA) and a default notice under s 88 of the National Credit Code.[1] It gave notice to Mr Bayly that he was in default and that if he did not remedy the default within 31 days, the whole of the amount owing under each of the loan agreements would become immediately due and payable. It notified him that, amongst other things, Westpac could commence enforcement proceedings against him, repossess the unit and exercise the powers conferred by the Mortgage, the PLA and the Land Title Act 1994 (Qld).[1]Schedule 1 to the National Consumer Credit Protection Act 2009 (Cth).

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:	Bayly v Westpac Banking Corporation [2020] QCA 148
PARTIES:	DALLAS HENRY BAYLY (appellant) v WESTPAC BANKING CORPORATION ABN 33 007 457 141 (respondent)
FILE NO/S:	Appeal No 1892 of 2020 DC No 1030 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Brisbane – Unreported, 29 January 2020 (Koppenol DCJ)
DELIVERED ON:	14 July 2020
DELIVERED AT:	Brisbane
HEARING DATE:	2 June 2020
JUDGES:	Sofronoff P and Fraser JA and Bradley J
ORDER:	The appeal is dismissed with costs.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT – FOR DEBT OR LIQUIDATED DEMAND OR FOR POSSESSION OF LAND – where the respondent sued the appellant under a mortgage and successfully applied for summary judgment – where the appellant had delivered a promissory note to the respondent – where the respondent did not agree to accept the promissory note in satisfaction of the debts secured by the mortgage – where the appellant nonetheless claimed he had discharged his liability to the respondent under the mortgage by delivering the promissory note – whether the learned primary Judge erred in finding the appellant had no real prospect of succeeding in his defence based on the contention that his debt to the respondent had been extinguished as a result of the delivery of the promissory note PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT – FOR DEBT OR LIQUIDATED DEMAND OR FOR POSSESSION OF LAND – where the respondent sued the appellant under a mortgage and successfully applied for summary judgment – where the appellant entered into the mortgage with the respondent’s predecessor in law – where all of the assets and liabilities of the respondent’s predecessor in law became the assets and liabilities of the respondent without any transfer, conveyance or assignment on 1 March 2010, pursuant to the Financial Sector (Business Transfer and Group Restructure) Act 1999 (Cth) – where the appellant nonetheless claimed the respondent was not entitled to enforce the mortgage because he had not entered into any contract with the respondent – whether the learned primary Judge erred in finding the appellant had no real prospect of succeeding in his defence based on his challenge to the standing of the respondent Financial Sector (Business Transfer and Group Restructure) Act 1999 (Cth), s 20, s 22 Byrne v Javelin Asset Management Pty Ltd [2016] VSCA 214, cited Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523, applied Fielding & Platt Ltd v Najjar [1969] 1 WLR 357, distinguished
COUNSEL:	The appellant appeared on his own behalf D M Turner for the respondent
SOLICITORS:	The appellant appeared on his own behalf Minter Ellison for the respondent