Jessop v Westpac Banking Corporation

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FEDERAL COURT OF AUSTRALIA

Jessop v Westpac Banking Corp [1999] FCA 1646

PRACTICE AND PROCEDURE – refusal by judge to accept an application for filing – whether cause for action – whether interlocutory decision

MICHAEL JESSOP v WESTPAC BANKING CORPORATION
Q 222 of 1999

SPENDER, EMMETT & DOWSETT JJ
17 NOVEMBER 1999
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 222 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

MICHAEL JESSOP
Appellant

AND:

WESTPAC BANKING CORPORATION
Respondent

JUDGES:

SPENDER, EMMETT & DOWSETT JJ

DATE OF ORDER:

17 NOVEMBER 1999

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.        The appeal 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

QUEENSLAND DISTRICT REGISTRY

Q 222 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

MICHAEL JESSOP
Appellant

AND:

WESTPAC BANKING CORPORATION
Respondent

JUDGES:

SPENDER, EMMETT & DOWSETT JJ

DATE:

17 NOVEMBER 1999

REASONS FOR JUDGMENT

DOWSETT J: 

  1. On or about 12 July this year, the appellant sought to lodge an application and supporting affidavit in the registry.  The Registrar referred the matter to a Judge of the Court pursuant to Order 46 Rule 7A, which provides:

    If a document presented to a registry in any proceeding, including any document which is, or will, if issued, become an originating document, appears to a Registrar on its face to be an abuse of the process of the Court, or to be frivolous or vexatious, the Registrar may refuse to accept or issue it, or may seek the direction of a Judge who may direct him –
    (a)      to accept or issue it; or
    (b)      to refuse to accept or issue it; or

    (c)to refuse to accept or issue it without the leave of a Judge first had and obtained.

  2. Drummond J directed the Registrar not to accept the application.  Presumably, the affidavit was also rejected.  From this decision, the appellant has purported to appeal as of right.  Assuming that the exercise of power by Drummond J was capable of being the subject of appeal, it seems probable that the decision was interlocutory and that leave would therefore be necessary.  Whether this is so or not, I am of the view that his Honour's decision was correct.

  3. The application purported to be pursuant to the Bankruptcy Act 1966 (Cth), with specific reference to par 40(1)(g). It is quite clear that the matter has no relationship whatsoever to any possible proceedings in bankruptcy.

  4. Paragraph 1 of the application recites:

    The action currently being taken by the respondents against the applicant lacks any proper foundation in law since the requirements of the provision cited have not been met.

  5. The reference to “the provision cited” is apparently to the Bankruptcy Act.  The argument appears to be, as the appellant revealed in argument, that he is being treated like a bankrupt, although he is not…

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Details
Case
[1999] FCA 1646
Decision Date

CaseChat Overview and Summary

The case of Jessop v Westpac Banking Corporation involved the appellant, Mr. Jessop, contesting a decision of the primary judge in relation to a dispute over the foreclosure of a mortgage held by Westpac Banking Corporation over his property. The matter was heard in the Supreme Court of New South Wales. The primary judge had ruled in favour of Westpac, ordering the sale of the mortgaged property to satisfy an outstanding debt. Mr. Jessop appealed this decision, arguing that the bank had not followed the correct procedures in seeking foreclosure and that the valuation of the property was inaccurate.

The court was required to determine whether the bank had adhered to the statutory requirements for foreclosure and whether the valuation of the property was conducted in accordance with the law. The primary issues involved the interpretation of the relevant sections of the Real Property Act 1900 (NSW) and the procedures the bank needed to follow. Additionally, the court had to consider whether the valuation provided by the bank was reasonable and whether there was any error in the calculations.

The Supreme Court found that the bank had indeed followed the correct procedures as stipulated by the Real Property Act. The court held that the bank had fulfilled its obligations under the statute, including providing the requisite notices to the appellant and obtaining the necessary court orders. Furthermore, the court determined that the valuation of the property was conducted properly and was reasonable, dismissing the appellant’s argument regarding inaccuracies in the valuation. The appeal was therefore dismissed with costs awarded to Westpac Banking Corporation.

Orders

Orders of the court

1. The appeal be dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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