McLean v Westpac Banking Corporation

The appeal in McLean v Westpac Banking Corporation was brought by the appellant, McLean, against the respondent, Westpac Banking Corporation. The dispute originated from a loan agreement dated 31 July 2008, where Westpac loaned McLean $560,000 to be repaid over 30 years, secured by a mortgage on a property in Ledge Point. After McLean defaulted on the loan, Westpac served a default notice and subsequently sought vacant possession of the property. The primary judge granted Westpac’s application for summary judgment, ordering McLean to vacate the property. McLean appealed this decision and filed a notice of appeal on 12 October 2009. The appeal raised several complex and lengthy grounds which were considered defective and did not properly address the issues at hand.

The court had to decide several key legal issues. Firstly, whether the grounds of appeal were adequate and had a reasonable prospect of success. Secondly, whether McLean had made sufficient progress in prosecuting the appeal, particularly in relation to her application to adduce new evidence. Thirdly, whether McLean's application for a stay of execution of the judgment should be granted, considering the likelihood of success on appeal. The court's task was to assess whether the appeal met the necessary criteria under Rule 43(2)(g) of the Supreme Court (Court of Appeal) Rules 2005 (WA) and whether the appeal had progressed effectively over the stipulated period.

The court found that the grounds of appeal were manifestly defective, as they did not relate to the defence now being asserted and did not constitute proper grounds. Additionally, McLean had made no effective progress in the appeal over a period of seven months, failing to adequately address the application for leave to adduce new evidence. The court concluded that McLean had not demonstrated that the appeal had a reasonable prospect of success. Consequently, the court dismissed the appeal and denied the application for a stay of execution. The dismissal hinged on the fact that McLean had not shown that the appeal had a reasonable prospect of success and had not made effective progress in the appeal process.

The court ordered that the appeal be dismissed with costs to be paid by McLean. The court also made orders regarding the appellant's application for leave to adduce additional evidence, and for directions in relation to the enforcement of the judgment. This outcome underscored the importance of adhering to procedural rules and the necessity of demonstrating a reasonable prospect of success in appeals.