Kim Louise Rich v Westpac Banking Corporation

[2015] HCASL 34

KIM LOUISE RICH

v

WESTPAC BANKING CORPORATION

[2015] HCASL 34
S122/2014

1. The applicant seeks special leave to appeal against orders of the Court of Appeal of the Supreme Court of New South Wales (Ward, Emmett and Gleeson JJA) refusing the applicant leave to appeal against orders made by Bellew J in the Common Law Division of the Supreme Court of New South Wales.  By those orders Bellew J dismissed the applicant's motion for leave to be joined as a defendant to proceedings brought by the present respondent ("the Bank") against the trustee of her former husband's bankrupt estate.

2. The former husband was the registered proprietor of land in Vaucluse, New South Wales.  The Bank sought possession of that land in exercise of its rights as mortgagee under two "all moneys" mortgages granted by the former husband.

3. The trustee in bankruptcy of the applicant's former husband consented to an order that the Bank have judgment for possession of the land.

4. The applicant points to no arguable error in the decision of the Court of Appeal.  The applicant seeks to make in this Court a claim in negligence that was not made in the courts below.  Having regard to the course of proceedings at first instance, and on appeal to the Court of Appeal, the claim in negligence (even if relevant to the Bank's claim for possession) may not be pursued in this Court.

5. An appeal to this Court would not enjoy sufficient prospects of success to warrant a grant of special leave.

6. Pursuant to r 41.11.1 of the High Court Rules 2004 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

K.M. Hayne
8 April 2015 G.A.A. Nettle