Heritage Bank Limited v Gleeson

DISTRICT COURT OF QUEENSLAND

CITATION:

Heritage Bank Limited v Gleeson & anor [2019] QDC 119

PARTIES:

HERITAGE BANK LIMITED
ACN 32 087 652 024
(plaintiff/respondent)

v

JAROD LUKE GLEESON
(first defendant)

SHEREE AMY TAYLOR
(second defendant/applicant)

FILE NO/S:

3066/18

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

25 June 2019 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

25 June 2019

JUDGE:

Porter QC DCJ

ORDER:

1.          Application filed by the second defendant on 24 April 2019 is dismissed.

2.          Application filed by the second defendant on 8 May 2019 is dismissed.

3.          Each party bears their own costs of the applications.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – EX PARTE ORDERS AND JUDGMENTS – where the defendants had defaulted on mortgage repayments – where an order for substituted service was made – where an application for substituted service order was made by the plaintiff ex parte– where default judgment was subsequently entered against the defendants – where the respondent mortgagor has taken possession of the property –  where the plaintiff failed to disclose the second defendant’s stated preferences for receiving communication – whether the plaintiff had a duty for full and frank disclosure on the substituted service application –  whether the plaintiff’s non-disclosure on the substituted service application was material – whether the substituted service order should be set aside – whether the second defendant has an arguable defence to the possession or debt claims.

Land Title Act 1994 (Qld), s 78, s 184
National Consumer Credit Protection Act 2009 (Cth), schedule 1, National Credit Code, s 88

Hall v Hall [2007] WASC 198
Thomas Bishop Limited v Helmville Limited [1972] 2 WLR 149
Westpac Banking Corporation v Tesoro [2012] VSC 182

COUNSEL:

Y Chekirova for the applicant on a direct brief
AJ Kennedy for the respondent

SOLICITORS:

Dentons Australia for the respondent

1. On 23 August 2018 the plaintiff commenced proceedings in the District Court of Queensland seeking possession, under a registered mortgage, of a certain house and land (the house) and judgment for sums owing under a loan agreement secured by the mortgage.  The first defendant, Jarod Luke Gleeson, is the husband of the second defendant, Sheree Amy Taylor although they have not lived as husband and wife for some time.  Mr Gleeson, is the registered proprietor and mortgagor of the house. 

1. The house came to be owned by him in its current form, in general terms, in this way.  Mr Gleeson and Ms Taylor began living together in a domestic relationship in around 2004.  In 2006 they bought a piece of land and obtained funding to build a house on it.  They married in late 2012.  The house was funded by lending from Heritage Bank Limited (the bank), along with some part of the purchase of the land.

1. There have been various dealings between Mr Gleeson and Ms Taylor and the bank since…