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Hou v Westpac Banking Corporation

Hou v Westpac Banking Corporation

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Case Copied 5 December 2014 34 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2010 06772

Qin Qin Hou	First Appellant
and
Savvas Kanakaridis	Second Appellant
v
Westpac Banking Corporation (ABN 003 007 457 141)	Respondent

S CI 2010 06774

Qin Qin Hou	Appellant
v
Westpac Banking Corporation (ABN 003 007 457 141)	Respondent

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JUDGE:	Warren CJ
WHERE HELD:	Melbourne
DATE OF HEARING:	19 August 2014
DATE OF JUDGMENT:	5 December 2014
CASE MAY BE CITED AS:	Hou v Westpac
MEDIUM NEUTRAL CITATION:	[2014] VSC 606

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MORTGAGE RECOVERY – Appeal from decision of an Associate Judge – Whether error in refusing to adjourn proceedings – Whether error in granting summary judgement – Whether new material could be adduced on appeal – No real as opposed to fanciful prospect of success – Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158 applied – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Savvas Kanakaridis (in person)
For the Defendant	Mr S D Hay	Gadens Lawyers

HER HONOUR:

The appellants appeal the orders of an Associate Judge in favour of the Respondent.

This appeal concerns two proceedings heard before an Associate Judge.[1] The respondent in both matters, as plaintiff ('Westpac'), claimed it provided the appellants with two loans secured by mortgages over two properties.
[1]Note that as these proceedings involved similar claims and documents, reference to an affidavit should be taken as reference to the affidavit filed in both proceedings unless otherwise noted.

On 23 September 2003, the respondent granted an equity access loan with a limit of $420,000 on 23 September 2003 ('the first loan agreement'). Subsequently, Westpac varied the loan agreement by increasing the credit limit to $496,000 on 24 March 2004. There were terms of the loan agreement that applied to the variation. In proceeding S CI 2010 06772, Westpac sought possession under a mortgage that secured the loan following default by the appellants.

On the same day, 23 September 2003, the respondent granted an equity access loan with a limit of $384,000 (‘the second loan agreement’). Subsequently, Westpac varied the loan agreement by increasing the credit limit of the second loan agreement to $409,000 on 24 August 2005 and the limit was again increased on 23 November 2007 to $434,000. There were terms of the loan agreement that applied to the variation. In proceeding S CI 2010 6774, Westpac sought possession under a mortgage that secured the loan following default by the appellant.

Broadly speaking, the terms of the loan agreements[2] dealt with the rate and payment of interest, the repayment of the outstanding principal and notices of demand.
[2]See amended statement of claim dated 3 April 2014 for S CI 2010 06772 and S CI 2010 06774 ('the amended statements of claim'); the terms as alleged were described in paragraph 3 of the amended statements of claim.

The terms also required the appellants to provide security by a first registered mortgage given as registered proprietors over properties. The first loan…

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: [2014] VSC 606
Decision Date: 5 December 2014

CaseChat Overview and Summary

In the case of Hou v Westpac Banking Corporation, the plaintiff sought to appeal a decision made by an Associate Judge in relation to a mortgage recovery dispute. The plaintiff argued that the Associate Judge had erred in refusing to adjourn the proceedings and in granting summary judgment. Additionally, the plaintiff sought to adduce new material in the appeal. The case was heard in the Supreme Court of Victoria.

The primary legal issues that the court needed to decide were whether the Associate Judge had erred in his decision to refuse an adjournment and in granting summary judgment. Another issue was whether new material could be introduced in the appeal, and finally, whether there was a real, as opposed to a fanciful, prospect of success on appeal. The court examined these issues in light of the case law, specifically Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158.

The court found that the Associate Judge had not erred in refusing to adjourn the proceedings, as the plaintiff had not demonstrated a sufficient basis for an adjournment. The court also found that the Associate Judge had not erred in granting summary judgment, as there was no real prospect of the plaintiff succeeding in the case. Furthermore, the court held that new material could not be adduced on appeal, and that the plaintiff did not have a real prospect of success on appeal. The court applied the principles set out in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158 in reaching its decision.

The appeal was dismissed, and the decision of the Associate Judge was upheld. The court found that there was no error in the decision-making process and that the plaintiff did not have a real prospect of success on appeal. The court also held that new material could not be introduced in the appeal. The decision of the Associate Judge was therefore affirmed, and the plaintiff's appeal was dismissed in its entirety.

Orders