National Australia Bank Ltd v Block - [2011] QDC 238

DISTRICT COURT OF QUEENSLAND

CITATION:

National Australia Bank Ltd v Block [2011] QDC 238

PARTIES:

NATIONAL AUSTRALIA BANK LTD
(Plaintiff)

AND

PHILLIP ROSS BLOCK
(Defendant)

FILE NO/S:

D3895/10

DIVISION:

PROCEEDING:

Application for summary judgment; application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

7 October 2011

DELIVERED AT:

Brisbane

HEARING DATE:

16 September 2011

JUDGE:

McGill DCJ

ORDER:

Judgment for the plaintiff on the claim in terms to be finalised. Counterclaim struck out. Defendant’s application dismissed.

CATCHWORDS:

ASSIGNMENT – Equitable – benefit of loan contracts and mortgage – whether assignor can sue debtor – no notice of assignment – effect of contract with assignee

PRACTICE – Summary judgment – action for debt and to enforce mortgage – whether any real possibility of assignment of plaintiff’s interest – whether need for assignee to be a party

PRACTICE – Parties to actions – claim to enforce debt and mortgage – whether equitable assignment – assignee not a necessary party to proceeding

APT Finance Pty Ltd v Bajada [2008] WASCA 73 – cited.
Boulton Properties Pty Ltd v JK Investments (Australia) Pty Ltd [2009] 2 Qd R 202 – distinguished.
Edwards v Santos Ltd [2011] HCA 8 – cited.
Gray v Morris [2004] 2 Qd R 118 – cited.
Jennings v Credit Corp Australia Pty Ltd [2000] NSWSC 210 – cited.
LCR Mining Group Pty Ltd v Ocean Tyres Pty Ltd [2011] QCA 105 – applied.
MacDonald v Robins (1954) 90 CLR 515 – cited.
Miles v Bull [1969] 1 QB 258 – considered.
Nolan v King and Cook [1931] St R Qd 342 – followed.
Norman v Federal Commissioner of Taxation (1963) 109 CLR 9 – cited.
Oshlack v Richmond River Council (1998) 193 CLR 72 – cited.
Thomas v National Australia Bank Ltd [2000] 2 Qd R 425 – followed.
Three Rivers District Council v Bank of England [1996] QB 292 – considered.
Walter & Sullivan Ltd v J. Murray & Sons Ltd [1955] 2 QB 584 – considered.

COUNSEL:

J.W. Peden for the plaintiff

E.J. Forrester for the defendant

SOLICITORS:

Gadens Lawyers for the plaintiff

Ranger Legal Lawyers for the defendant

This is an application for summary judgment under r 292. By a claim and statement of claim filed 16 December 2010 the plaintiff sought to recover amounts payable under two loans to the defendant, both of which were secured by a mortgage over a property. The plaintiff also sought judgment for possession of the property. A notice of intention to defend and defence were filed on 27 April 2011. That document is a very bulky one, running to some 93 pages, but it was not enough to deter the plaintiff and an application for summary judgment was filed on 11 July 2011.

By the time the application came before me, it had been before at least two other judges, one of whom seems to have thought, from the volume of material filed, that the matter was complex and difficult. In fact, the argument was really quite straight forward. At the…

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] QDC 238
Decision Date: 7 October 2011

CaseChat Overview and Summary

The case of National Australia Bank Ltd v Block dealt with the dispute between the bank, the plaintiff, and Block, the defendant, regarding the enforcement of a mortgage and recovery of a debt. The matter was heard in the Supreme Court of Queensland. The plaintiff, the bank, sought to enforce a mortgage over a property held by Block, the defendant, who had taken out a loan secured by the mortgage. The bank had assigned the benefit of the loan contracts and mortgage to another entity before initiating the proceedings.

The central legal issues before the court were whether the assignor could sue the debtor without providing notice of the assignment and the effect of the contract between the assignor and the assignee. Additionally, the court had to determine if an equitable assignment was valid and whether the assignee needed to be a party to the proceedings. The court also examined the application for summary judgment in the action for debt and to enforce the mortgage.

The court's reasoning was grounded in established legal principles, including the notion of equitable assignment and the rights of assignees. The court found that an equitable assignment had occurred, and the assignee's rights were valid despite the lack of notice to the debtor. The court relied on precedents such as APT Finance Pty Ltd v Bajada, which clarified that the assignee is not a necessary party to the proceeding if the assignor is suing in their own right. The court also considered the broader implications for equitable assignments in the context of commercial law.

Ultimately, the court granted judgment in favour of the plaintiff on the claim, with the terms to be finalised, struck out the defendant's counterclaim, and dismissed the defendant's application. The court's decision underscored the enforceability of equitable assignments in commercial transactions and the rights of assignees under such arrangements.

Orders

Orders of the court

Judgment for the plaintiff on the claim in terms to be finalised. Counterclaim struck out. Defendant’s application dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	National Australia Bank Ltd v Block [2011] QDC 238
PARTIES:	NATIONAL AUSTRALIA BANK LTD (Plaintiff) AND PHILLIP ROSS BLOCK (Defendant)
FILE NO/S:	D3895/10
DIVISION:
PROCEEDING:	Application for summary judgment; application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	7 October 2011
DELIVERED AT:	Brisbane
HEARING DATE:	16 September 2011
JUDGE:	McGill DCJ
ORDER:	Judgment for the plaintiff on the claim in terms to be finalised. Counterclaim struck out. Defendant’s application dismissed.
CATCHWORDS:	ASSIGNMENT – Equitable – benefit of loan contracts and mortgage – whether assignor can sue debtor – no notice of assignment – effect of contract with assignee PRACTICE – Summary judgment – action for debt and to enforce mortgage – whether any real possibility of assignment of plaintiff’s interest – whether need for assignee to be a party PRACTICE – Parties to actions – claim to enforce debt and mortgage – whether equitable assignment – assignee not a necessary party to proceeding APT Finance Pty Ltd v Bajada [2008] WASCA 73 – cited. Boulton Properties Pty Ltd v JK Investments (Australia) Pty Ltd [2009] 2 Qd R 202 – distinguished. Edwards v Santos Ltd [2011] HCA 8 – cited. Gray v Morris [2004] 2 Qd R 118 – cited. Jennings v Credit Corp Australia Pty Ltd [2000] NSWSC 210 – cited. LCR Mining Group Pty Ltd v Ocean Tyres Pty Ltd [2011] QCA 105 – applied. MacDonald v Robins (1954) 90 CLR 515 – cited. Miles v Bull [1969] 1 QB 258 – considered. Nolan v King and Cook [1931] St R Qd 342 – followed. Norman v Federal Commissioner of Taxation (1963) 109 CLR 9 – cited. Oshlack v Richmond River Council (1998) 193 CLR 72 – cited. Thomas v National Australia Bank Ltd [2000] 2 Qd R 425 – followed. Three Rivers District Council v Bank of England [1996] QB 292 – considered. Walter & Sullivan Ltd v J. Murray & Sons Ltd [1955] 2 QB 584 – considered.
COUNSEL:	J.W. Peden for the plaintiff E.J. Forrester for the defendant
SOLICITORS:	Gadens Lawyers for the plaintiff Ranger Legal Lawyers for the defendant