McLean v Westpac Banking Corporation - [2011] WASCA 224

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: McLEAN -v- WESTPAC BANKING CORPORATION [2011] WASCA 224

CORAM: PULLIN JA
NEWNES JA
MURPHY JA

HEARD: 10 OCTOBER 2011

DELIVERED : 10 OCTOBER 2011

PUBLISHED : 19 OCTOBER 2011

FILE NO/S: CACV 129 of 2010

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 LTD -v- McLEAN [2011] WASC 2
File No  :CIV 3080 of 2009

Catchwords:

Appeal - Summary judgment application by bank - Alleged alteration of loan application - Allegation unsupported by admissible evidence - No evidence that bank was involved - Summary judgment entered - No error revealed

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr E J Forrester
Respondent: Mr G D Cobby

Solicitors:

Appellant: Ranger Legal
Respondent: Jackson McDonald

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

McLean and Permanent Custodians Ltd [2010] WASAT 127
Miles v Bull [1969] 1 QB 258

REASONS OF THE COURT: After the oral hearing, the court dismissed the appeal with reasons to be published later. These are the reasons.
The appellant, Ms McLean, appeals against a judgment of Kenneth Martin J dated 19 November 2010 whereby Ms McLean was ordered to deliver up possession of her property at Unit 1, 180 Kent Street, Busselton, to the respondent and to pay the respondent's costs.

The evidence

The appellant applied for a loan of $320,000 from the respondent's predecessor in title, St George Bank Ltd (the bank). The application was in writing and dated 18 December 2007. Ms McLean in one of her affidavits, deposed that the loan application form was filled in by a 'loan introducer'. The information in the loan application form stated that the loan was for 'investment' purposes, namely to 'purchase vacant land to be developed for residential investments'. The appellant signed the form three times on the last two pages. One signature was under a declaration that the loan was used 'wholly or predominantly' for 'business or investment purposes'. Another signature was under a declaration that;
The information in this application and the financial information supporting it are in all respects correct and complete to the best of my knowledge and belief. I acknowledge that the Bank will rely on this information in deciding whether to lend to me.
Ms McLean then received an offer from the bank dated 30 January 2008 which read:
We offer to lend you the loan amount on the terms and conditions set out in this Offer and the separate Residential Loan Agreement General Terms and Conditions booklet.
This was signed by an officer of the bank. The offer was accepted by Ms McLean who signed under the part of the form which read in part that she acknowledged by signing the document that she declared that 'all the information you have given us is accurate and not misleading and you…

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: [2011] WASCA 224
Decision Date: 19 OCTOBER 2011

CaseChat Overview and Summary

In the case of McLean v Westpac Banking Corporation, the dispute arose from a claim by the plaintiff, McLean, against the defendant, Westpac Banking Corporation, regarding an alleged alteration of a loan application. The plaintiff argued that the bank had altered the terms of his loan application without his consent. The matter was heard in the Federal Circuit Court of Australia, which had to determine whether the bank was entitled to summary judgment on the grounds that there was no admissible evidence to support the plaintiff's allegations.

The primary legal issue before the court was whether the plaintiff had presented sufficient evidence to establish a prima facie case against the bank. The court had to assess the admissibility and sufficiency of the evidence provided by the plaintiff, particularly regarding the alleged alteration of the loan application. Additionally, the court needed to consider whether the bank had demonstrated that there were no reasonable prospects that the plaintiff could succeed in the action, thereby justifying the grant of summary judgment.

The Federal Circuit Court found that the plaintiff's evidence did not establish a prima facie case against the bank. The court held that the plaintiff had not provided any admissible evidence to support the allegation that the bank had altered the loan application. Furthermore, the court determined that there was no evidence to suggest that the bank had been involved in the alleged alteration. Consequently, the court concluded that the bank was entitled to summary judgment, as the plaintiff had failed to present sufficient evidence to demonstrate a reasonable prospect of success in the action. The court found no error in the decision to grant summary judgment to the bank.

The final orders of the court were to dismiss the plaintiff's claims with costs, reflecting the court's determination that the plaintiff's allegations were unsupported by admissible evidence and that there were no reasonable prospects of success in the action against the bank.

Orders