McLEAN -v- WESTPAC BANKING CORPORATION [2012] WASCA 152

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASCA 152
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:29/2012	Heard:	24 JULY 2012
Coram:	NEWNES JA MURPHY JA	Delivered:	9/08/12
No of pages:	11	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	SHONA DIMITY McLEAN WESTPAC BANKING CORPORATION
Catchwords:	Practice and procedure Respondent made loans to appellant Appellant alleged respondent later 'securitised' loans Appellant denied respondent entitled to enforce loan agreement or mortgage Judgment entered for respondent Application to strike out appeal by appellant Whether defence of 'securitisation' has merit Meaning of 'securitisation' Appeal has no reasonable prospect of success
Legislation:	Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i), r 43(2)(g)(ii), r 43(2)(f)
Case References:	National Australia Bank v Norman [2012] VSC 14 RHG Mortgage Corporation Ltd v Astolfi [2011] NSWSC 1526 Westpac Banking Corporation v Mason [2011] NSWSC 1241

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : McLEAN -v- WESTPAC BANKING CORPORATION [2012] WASCA 152 CORAM : NEWNES JA

MURPHY JA

HEARD : 24 JULY 2012 DELIVERED : 9 AUGUST 2012 FILE NO/S : CACV 29 of 2012

CACV 30 of 2012

BETWEEN : SHONA DIMITY McLEAN

Appellant

AND

WESTPAC BANKING CORPORATION

Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : KENNETH MARTIN J

Citation : WESTPAC BANKING CORPORATION -v- McLEAN [2012] WASC 182

File No : CIV 2439 of 2009, CIV 2443 of 2009

Catchwords:

Practice and procedure - Respondent made loans to appellant - Appellant alleged respondent later 'securitised' loans - Appellant denied respondent entitled to enforce loan agreement or mortgage - Judgment entered for respondent - Application to strike out appeal by appellant - Whether defence of 'securitisation' has merit - Meaning of 'securitisation' - Appeal has no reasonable prospect of success

(Page 2)

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i), r 43(2)(g)(ii), r 43(2)(f)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : In person

Respondent : Mr G D Cobby

Solicitors:

Appellant : In person

Respondent : Gadens Lawyers

Case(s) referred to in judgment(s):

National Australia Bank v Norman [2012] VSC 14
RHG Mortgage Corporation Ltd v Astolfi [2011] NSWSC 1526
Westpac Banking Corporation v Mason [2011] NSWSC 1241

(Page 3)

1 NEWNES JA: The appellant has appealed against a decision of Kenneth Martin J who after trial gave judgment against her in two actions brought by the respondent. The actions were heard together.

2 The respondent has now applied to have the appeal in each action dismissed either under r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA), on the basis that none of the grounds of appeal has a reasonable prospect of succeeding, or under r 43(2)(g)(ii), on the basis that the appellant's case does not comply with r 32(4) and (5) in that the grounds of appeal and the appellant's written submissions are…

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: [2012] WASCA 152
Decision Date

CaseChat Overview and Summary

The appeal in McLean v Westpac Banking Corporation was heard by Newnes JA and Murphy JA of the Supreme Court of Western Australia's Court of Appeal. The appeal related to two actions brought by Westpac Banking Corporation against Shona McLean for possession of two residential properties, secured by mortgages on loans that Ms McLean had defaulted on. The central legal issue was whether Westpac had 'securitised' the loans, meaning they had been assigned to a third party, which Ms McLean claimed would prevent Westpac from enforcing the loan agreements or mortgages. The court had to determine the meaning of 'securitisation' in this context and assess whether Ms McLean's defence had any merit.

The court found that the defence of 'securitisation' was fundamentally flawed. The court determined that even if the loans had been securitised in some manner, it would not prevent Westpac from enforcing the loan agreements or mortgages since there had been no legal assignment to a third party. The court emphasised that Westpac's legal title to the loans and mortgages remained intact, allowing it to enforce its securities. The court also dismissed Ms McLean's other grounds of appeal, including claims of bias and improper legal representation, as misconceived. The appeals were ultimately dismissed as none of the grounds had a reasonable prospect of success.

Orders