Davis v Wheelihan - [1999] NSWSC 747

Reported Decision: [2000] ANZ ConvR 223
[2000] Aus Contract R 90-105
(1999) NSW ConvR 55-914

New South Wales

Supreme Court

CITATION: DAVIS v WHEELIHAN [1999] NSWSC 747

CURRENT JURISDICTION: COMMON LAW

FILE NUMBER(S): 13466/1995

HEARING DATE(S): 23-24 June 1999

JUDGMENT DATE:
27 July 1999

PARTIES :

THE ESTATE OF THE LATE HARRY DAVIS & ANOR
v
HEATHER LORRAINE WHEELIHAN

JUDGMENT OF: Master Malpass

COUNSEL : PLAINTIFF: MR D M LOEWENSTEIN
DEFENDANT: ANGUS RIDLEY

SOLICITORS: PLAINTIFF: HOLMAN WEBB
DEFENDANT: H J PALMER & CO

CATCHWORDS: Mortgage; Mortgagor not entitled to relief under either the Act or equitable doctrines; no agreement as alleged entitling mortgagee to recover moneys paid out to effect discharge of a caveat.

ACTS CITED: Contracts Review Act 1980, s 7.

CASES CITED: Baltic Shipping Company v Dillon (1991) 22 NSWLR 1.
Beneficial Finance Corporation v Karavas (1991) 23 NSWLR 256.
Garcia v The National Australia Bank (1998) 155 ALR 614.
Nguyen v Taylor (1992) 27 NSWLR 48.
West v AGC (Advances) Ltd (1986) 5 NSWLR 610.
Younan & Anor v Beneficial Finance Corporation Limited (Court of Appeal, 21 November 1994).

DECISION: SEE PARAGRAPH 38

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER MALPASS

TUESDAY 27 JULY 1999
13466/1995 THE ESTATE OF THE LATE HARRY DAVIS & ANOR v HEATHER LORRAINE WHEELIHAN

JUDGMENT

1   These proceedings were commenced on 13 September 1995. They came on for hearing on 23 June 1999. On that day, a proposed Amended Statement of Claim was handed up in Court. Leave was given to make certain of the amendments appearing in that document.

2   The parties have relied on affidavit evidence. The principal deponent supporting the plaintiff’s case is Mr Reeve (the solicitor for the plaintiff). The defendant relies on affidavits sworn by herself and her daughter (Fiona). Mr Reeve, the defendant and Fiona have been cross-examined. The parties have tendered documentation.

3   The defendant is the registered proprietor of a residential property at 6 Boundary Street Narrabri (the property). In about April 1994, Fiona became acquainted with James Walton (Walton). At that time, the defendant had a loan with the Westpac Bank and the amount outstanding was about $8,000.00. It was secured by a mortgage. It seems that there had been a Defence Service Loan. She had a personal loan with that Bank and about $19,000.00 was outstanding. She was also paying interest on a loan taken out in Fiona’s name with the ANZ Bank. The loan was for $7,000.00. The purpose of this loan was to fund a business course for Fiona. A relationship developed between Fiona and Walton. The involvement continued thereafter (probably at least until Walton went to prison in about May 1995).

4   In about July 1994, Walton arranged a loan for $20,000.00 (a “Household Continuing Credit Account”) with Household Finance Services (HFS). The loan was taken out in the name of the defendant. Walton had promised her that he would make the payments due under the loan. He had earlier…

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: [1999] NSWSC 747
Decision Date: 27 July 1999

CaseChat Overview and Summary

Davis and Wheelihan were involved in a legal dispute concerning a mortgage over property. The matter was heard in the Supreme Court of New South Wales. The central issue before the court was whether the mortgagor, Davis, was entitled to relief under the relevant statute or equitable principles. Specifically, the court had to determine if there was an agreement between Davis and Wheelihan that would allow Wheelihan, the mortgagee, to recover moneys paid to discharge a caveat.

The court examined the statutory provisions and equitable doctrines to assess if Davis was entitled to any relief. It was established that the mortgagor did not qualify for relief under the statutory provisions or the equitable doctrines. Furthermore, the court found that there was no agreement between the parties that would entitle Wheelihan to recover the moneys paid to discharge the caveat. The court concluded that the mortgagor was not entitled to the relief sought.

Consequently, the court ruled in favour of Wheelihan, finding that the mortgagor was not entitled to relief under either the statutory provisions or equitable doctrines. Additionally, the court held that there was no agreement as alleged between the parties that would allow Wheelihan to recover the moneys paid to discharge the caveat.

Orders