FEDERAL COURT OF AUSTRALIA
Garrett v Westpac Banking Corporation [2007] FCA 439
PRACTICE AND PROCEDURE – summary judgment – s 31A(2) of the Federal Court of Australia Act 1976 (Cth) – no demonstrated standing – no reasonable prospect of success
Federal Court of Australia Act 1976 (Cth) s 31A(2)
Bills of Exchange Act 1909 (Cth) s 59, s 28(1)
Banking Act 1959 (Cth)
Federal Court Rules O 20UNCITRAL Convention on International Bills of Exchange and International Promissory Notes (1988)
ANDREW MORTON GARRETT v WESTPAC BANKING CORPORATION, TIERNAN WHITE AND CARL ZUBER
No SAD 9 of 2007
FINN J
26 MARCH 2007
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 9 OF 2007
BETWEEN:
ANDREW MORTON GARRETT
ApplicantAND:
WESTPAC BANKING CORPORATION
First RespondentTIERNAN WHITE
Second RespondentCARL ZUBER
Third Respondent
JUDGE:
FINN J
DATE OF ORDER:
26 MARCH 2007
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.The application be dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 9 OF 2007
BETWEEN:
ANDREW MORTON GARRETT
ApplicantAND:
WESTPAC BANKING CORPORATION
First RespondentTIERNAN WHITE
Second RespondentCARL ZUBER
Third Respondent
JUDGE:
FINN J
DATE:
26 MARCH 2007
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
The respondents in this matter, Westpac Banking Corporation and two of its employees, have moved the Court to have judgment entered in their favour pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) in respect of an application brought against them by Andrew Morton Garrett. In the alternative they seek orders that the proceeding be dismissed or stayed pursuant to O 20 of the Federal Court Rules or else that security be provided in respect of their legal costs in the amount of $80,000 and that the proceeding be stayed until that security be given.
The application purports to be bought by Mr Garrett in his capacities variously (i) as trustee of the Andrew Garrett Family Trust (No 3); (ii) as trustee for Corporate Investments pursuant to a Declaration of Trust dated 31 December 2006; and (iii) as trustee of the Andrew Garrett Group and Corporate Investments Joint Venture. It seeks orders that the respondents (i) have breached the duty of care owed to him by a bank to its customer; (ii) have breached the Bills of Exchange Act 1909 (Cth); and (iii) have breached the Banking Act 1959 (Cth). It went on to seek an order that Westpac credit to an account of Andrew Morton Garrett a sum of $11,350,000,000,000 and an order for damages. The application claims by way of interlocutory relief:
“1.That Westpac give an undertaking as to damages in respect of a arising out of (sic) these proceedings and in particular, with respect to;
a.Letter of Offer addressed to the Qantas Board dated 2nd of January 2007 to purchase 100% of the Issued Capital of Qantas Ltd.
b.Letter of Offer addressed…
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- Case
- [2007] FCA 439
- Decision Date
CaseChat Overview and Summary
The court examined the evidence and found that the bank had properly served the necessary notices and that the foreclosure sale was conducted in compliance with the legal requirements. The court held that the bank had followed all necessary procedural steps and that there was no evidence of any wrongdoing on the part of the bank. The court dismissed Mr. Garrett's claims and ordered that the application be dismissed with costs. This decision underscored the importance of strict adherence to legal formalities in foreclosure proceedings and reinforced the principles governing the enforcement of mortgage rights.
Orders
Orders of the court
1. The application be dismissed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by:
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