Gattellaro & Anor v Westpac - [2002] HCATrans 373

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S92 of 2001

B e t w e e n -
YOLANDA GATTELLARO
First Applicant
ROCCO GATTELLARO
Second Applicant
and
WESTPAC BANKING CORPORATION
Respondent
Summons

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 23 SEPTEMBER 2002, AT 9.31 AM

MR G.J. McVAY: If it please your Honour, I appear for the applicant. (instructed by Spencer Whitby & Co)

MR J.W.J. STEVENSON: If your Honour pleases, I appear for the respondent. (instructed by Henry Davis York Lawyers)

HER HONOUR: Yes, Mr McVay.

MR McVAY: Thank you, your Honour. Your Honour, there is an amended summons in the papers filed on 16 September 2002.

HER HONOUR: Yes, I have that. What is the basis for order 2?

MR McVAY: I do not press that today before your Honour.

HER HONOUR: Thank you, yes.

MR McVAY: Orders 1 and 3 I will ask your Honour to consider. Does your Honour wish me to take you to the orders and take you through the power that your Honour has to extend time?

HER HONOUR: No. I do not think that is – that is not in issue, is it, Mr Stevenson?

MR STEVENSON: No, your Honour.

HER HONOUR: No, and I have read the affidavit.

MR McVAY: Yes, thank you. I should read it perhaps formally on to the record. I rely on the affidavit of Yolanda Gattellaro of 21 June 2002.

MR STEVENSON: There is one objection to that, your Honour.

HER HONOUR: Yes, what is that objection?

MR STEVENSON: The objection is to the annexures to paragraph 24 of the affidavit. As your Honour will see, Mrs Gattellaro there gives evidence of negotiations. I do not object to the text of paragraph 24 going in so your Honour can see over what time they took place, but I do object to the letters going in because they are without prejudice letters.

HER HONOUR: Yes. Well, that would seem unanswerable, would it not?

MR McVAY: Not necessarily, your Honour, with respect. I had anticipated my friend’s objection and it may be, your Honour, that all we need is the dates of the letters and the substance is not important. So, your Honour, it does not ‑ ‑ ‑

HER HONOUR: Well, you have the dates in the paragraph.

MR McVAY: That is sufficient.

HER HONOUR: Well, why do I not simply return the annexures to you.

MR McVAY: Yes, that is suitable, your Honour.

HER HONOUR: Yes. Well, I will uphold the objection to the letters and return the letters to Mr McVay.

MR STEVENSON: Your Honour, I have an affidavit to read. Is it convenient to do that later or now?

HER HONOUR: Yes. Well, we will go through Mr McVay’s affidavits. Yes.

MR McVAY: Your Honour, to assist I have put together a chronology.

HER HONOUR: Have you read all your affidavits?

MR McVAY: I have.

HER…

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: [2002] HCATrans 373
Decision Date

CaseChat Overview and Summary

Gaudron J, sitting in chambers, considered an application by the applicants, Gattellaro and another, against Westpac. The dispute concerned an application for an interlocutory injunction to restrain Westpac from exercising its power of sale under a mortgage.

The primary legal issue before Gaudron J was whether the applicants had established a serious question to be tried regarding their claim that Westpac had breached its duty of care owed to them as mortgagors. This duty, it was argued, encompassed an obligation to exercise its power of sale in good faith and for a proper purpose, and not to act recklessly.

Gaudron J reasoned that the applicants had failed to demonstrate a serious question to be tried. Her Honour noted that the applicants' allegations of Westpac's improper motive in exercising the power of sale were unsubstantiated and speculative. The evidence did not support a finding that Westpac's actions were motivated by anything other than the recovery of the debt owed under the mortgage. Consequently, the threshold for granting an interlocutory injunction, which requires a serious question to be tried, was not met.

The application for an interlocutory injunction was dismissed.

Orders