Dawson & Anor v Westpac Banking Corporation - [1991] HCATrans 92

_ili,r "'.J,"':_~,ST~.U.!A,1,r -~))~~---

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S118 of 1990
B e t w e e n -
JOHN WILLIAM DAWSON and PREMIUM TYRE SERVICE PTY LIMITED

Appellants

and
WESTPAC BANKING CORPORATION

Respondent

MASON CJ
DEANE J
DAWSON J
TOOHEY J

McHUGH J

Dawson(2)

12/4/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 12 APRIL 1991, AT 9.46 AM

MASON CJ: Yes, Mr Downes.

MR DOWNES:

Your Honours, the matters we would wish to

argue, if we fail on the present ground and leave
is given to us to do so, are as follows: one, that
where a dead is procured by fraud or simply where
its execution is not authorized, section 51A of the
Conveyancing Act does not protect it. Two, that
whatever findings be ultimately made relating to
the use of the name ATWA in the mortgage,
section 51A does not apply, and thirdly, that any
mistake made by Westpac was related to the parties
to the transaction was not a mistake of the kind
dealt with in Taylor v Johnson, upon which
Mr Justice Mahoney relied at page 923, because that
is a case about mistake relating to a purchase
price, and in the circumstances there is not a

mistake case at all. The mistake simply shows that
there was no valid transaction and the proposition
to that effect, namely that mistake as to parties
is not a matter of mistake at all but simply a
question of whether there is a contract or not,
appears in the very passage cited by
Mr Justice Mahoney in Greig & Davis at page 923.

TOOHEY J: Those propositions do not accord, at least

completely, with the alternative sought in the
notice of appeal, do they, and there is some
correspondence but it is not complete?

MR DOWNES:

Yes.

I should have thought, Your Honour, that

they were within what appears in the notice of

appeal. I am simply, so to speak, isolating the
particular matter we seek to rely upon in a way

which is not isolated in the notice of appeal. I
think the notice of appeal simply says, that
questions arise relating to one, section Sl(l)(a),
two, mistake, et cetera.
Now, Your Honours, we have taken the opportunity overnight to produce a document which

seeks to compare in column form the findings.

MASON CJ: Yes.

MR DOWNES:

And could I hand up to Your Honours that

document and I think that this document will be an
aid to the process of concentration of the mind
that Your Honour the Chief Justice referred to last
night and will enable me to reduce the time that I
need further to take.
I will not take Your Honours through them.

Your Honours will see that most of the matters that
are referred to, at any event, on page 1 are
references to the appeal book to which I have taken
Your Honours.

Dawson(2)

12/4/91

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.

Continue reading Dawson & Anor v Westpac Banking Corporation

Details

AGLC: Dawson & Anor v Westpac Banking Corporation [1991] HCATrans 92
Case: [1991] HCATrans 92
Decision Date

CaseChat Overview and Summary

The parties to this proceeding before the High Court of Australia were John William Dawson and Premium Tyre Service Pty Limited (appellants) and Westpac Banking Corporation (respondent). The dispute concerned the validity of a mortgage, with the appellants arguing that it was procured by fraud or that its execution was not authorised.

The legal issues before the court included whether section 51A of the Conveyancing Act protected a deed procured by fraud or where its execution was not authorised. Further, the court was required to determine if section 51A applied irrespective of findings relating to the use of a name in the mortgage. Finally, the court considered whether any mistake made by Westpac regarding the parties to the transaction was of the kind dealt with in *Taylor v Johnson*, or if it demonstrated the absence of a valid transaction.

The appellants contended that section 51A of the Conveyancing Act did not apply in circumstances of fraud or unauthorised execution, and that any mistake as to parties meant there was no valid contract, rather than a mistake in the contractual sense. They sought to distinguish the present case from *Taylor v Johnson*, which concerned a mistake relating to purchase price. The appellants also highlighted findings of the trial judge regarding the demeanour of witnesses and the discrediting of documents, as well as the inadequacy of evidence.

Orders