Laverick v Westpac Banking Corporation

SUPREME COURT OF QUEENSLAND

CITATION:

Laverick v Westpac Banking Corporation [2020] QSC 333

PARTIES:

KEVIN JAMES LAVERICK

(Plaintiff)

v

WESTPAC BANKING CORPORATION ABN 33 007 457 141

(Defendant)

FILE NO/S:

BS No 976 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

6 November 2020

DELIVERED AT:

Brisbane

HEARING DATE:

15 October 2020

JUDGE:

Bowskill J

ORDERS:

1. The whole of the statement of claim filed on 18 August 2020 is struck out, pursuant to r 171(1)(a) and (b) of the Uniform Civil Procedure Rules 1999.

2.  The plaintiff has leave to replead, subject to the limitations expressed in paragraph [59] of these reasons.

3.  I will hear from the parties in relation to the timing of directions for the filing of any amended claim and statement of claim, any consequential orders and as to the costs of the application.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – APPEARANCE OR NOTICE TO DEFEND – CONDITIONAL APPEARANCE – where the plaintiff brings proceedings against the defendant on the basis of an assignment, recorded in consent orders made by the Family Court of Australia, to him from the estate of his late de facto partner, of “any potential claim or action” she may have had against the defendant “in respect of the mortgage on” certain property – where the proceedings seek to challenge the validity of the loan agreement between the defendant bank and the plaintiff’s late former partner, on the basis of allegations of wrongful conduct on the part of the mortgage broker and the defendant bank at the time of approving and entering into the loan agreement – whether a claim in relation to the validity of the loan agreement falls within the scope of the assignment – whether the plaintiff has standing to bring the proceeding

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – DISCLOSING NO REASONABLE CAUSE OF ACTION OR DEFENCE – whether the statement of claim should be struck out on the basis that it discloses no reasonable cause of action

Uniform Civil Procedure Rules 1999 (Qld), r 16, r 144, r 171

COUNSEL:

The plaintiff/respondent appeared in person

F Lubett for the defendant/applicant

SOLICITORS:

The plaintiff/respondent appeared in person

Thomson Geer for the defendant/applicant

1. By originating application filed on 28 January 2020 the plaintiff, Mr Laverick, sought orders against the defendant, Westpac, including:

   (a)a declaration that the loan agreement dated 30 July 2007, made between Westpac as lender and Joanne Kathryn Tyler-Jenkins as borrower, and the mortgage, registered number 710890490, over Lot 31 on RP 125185, between Ms Tyler-Jenkins as mortgagor and Westpac as mortgagee, are “void in whole”;

   (b)an order for all interest paid to Westpac “in connection with” that land be “remitted to the plaintiff” (estimated at $327,600);

   (c)an order that “all initial finance” provided by the borrower, for the purchase of the land, be “remitted to the plaintiff” (in the sum of $210,391.91);

   (d)an order that all subdivision costs incurred by the borrower,…