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Re Westpac Banking Corporation

Re Westpac Banking Corporation

Case [2015] NSWSC 869 3 July 2015

Mortgages & Security Interests

Equitable Estoppel

Admissibility of Evidence

Compensatory Damages

Property Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Westpac Banking Corporation [2015] NSWSC 869
Hearing dates: 19 June 2015
Date of orders: 03 July 2015
Decision date: 03 July 2015
Jurisdiction: Common Law
Before: Robb J
Decision:
No orders made. Refer to [46] and [47].

Catchwords: PROCEDURE – funds paid into Court by plaintiff mortgagee – funds represent surplus proceeds after mortgagee sale of property – two applications for payment out of Court – two competing equitable interests in land – first notice of motion adjourned and second notice of motion heard – whether applicant entitled to funds on the basis of a charge over the property sold – registered proprietors of property not named as parties to deed – signed deed as directors/secretary – whether registered proprietors parties – proper construction of deed – registered proprietors parties to deed – guaranteed repayment by debtor – despite ambiguity, the deed allowed applicant to lodge a caveat over the property – deed allowed applicant to create a charge over property by lodgement of the caveat – the issue of priority between the two competing interests must be determined – hearing of both notices of motion to be relisted for balance of issues to be determined
Legislation Cited: Trustee Act 1925 (NSW)
Cases Cited: Bond v Rees Corporate Advisory Pty Ltd [2013] VSCA 13
Bondi Beach Astra Retirement Village Pty Ltd v
Hohman [2010] NSWSC 260
Coleman v Bone (1996) 9 BPR 16,235
Iaconis v Laza [2007] NSWSC 1103; (2007) 13 BPR 24,937
Murphy v Wright (1992) 5 BPR 11,734; BC920350
Padstow Corporation Pty Ltd v Fleming (No 2) [2011] NSWSC 1572; (2011) 86 ACSR 636
Redglove Projects Pty Ltd v Ngunnawal Local Aboriginal Land Council [2004] NSWSC 880; (2004) 12 BPR 22,319
Taleb v National Australia Bank [2011] NSWSC 1562; (2011) 82 NSWLR 489 Troncone v Aliperti (1994) 6 BPR 13,291; BC9402483
Category: Consequential orders (other than Costs)
Parties: Westpac Banking Corporation (plaintiff)
David Wai (applicant – motion filed 19.5.15)
Somy Ros (first applicant – motion filed 14.5.15)
Brian Kelly (second applicant – motion filed 14.5.15)
David Wai (first respondent – motion filed 14.5.15)
Regina Thei (second respondent – motion filed 14.5.15)
Brett Firman (third respondent – motion filed 14.5.15)
Representation:
Counsel: Amy Knox (applicant motion filed 14.5.15)
M Bennett (applicant on motion filed 19.5.15)
Solicitors: Tresscox Lawyers (applicant – motion filed 14.5.15)
Cordato Partners Lawyers (applicant – motion filed 19.5.15)

File Number(s): 2015/103252
Publication restriction: None

Judgment

By a summons filed on 8 April 2015, Westpac Banking Corporation paid into Court $59,053.63 pursuant to s 98 of the Trustee Act 1925 (NSW).
That amount represented the surplus after Westpac sold the property known as 14/26-34 McElhone Street, Woolloomooloo (the Property) under a registered mortgage granted to it by the registered proprietors of the Property, Regina Sonari Thei and Brett James Firman, after payment of all monies due to Westpac under the mortgage.
There were before the Court two notices of…

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.

Continue reading Re Westpac Banking Corporation

Details

AGLC: Re Westpac Banking Corporation [2015] NSWSC 869
Case: [2015] NSWSC 869
Decision Date: 03 July 2015

CaseChat Overview and Summary

In this matter, the court was required to determine which of two applicants was entitled to the proceeds of a surplus from the sale of a property that had been subject to a mortgage. The first applicant, a bank, had registered a caveat over the property in reliance on a deed signed by the directors and secretary of a company. The second applicant claimed a charge over the property under a different deed. The dispute arose as the registered proprietors of the property were not named as parties to the deeds, raising questions about their validity. The court had to decide whether the registered proprietors were parties to the deeds, the proper construction of the deeds, and the priority between the competing interests.

The court considered the deeds and the circumstances surrounding their execution. The court found that despite the ambiguity in the deeds, the registered proprietors were parties to the deeds because they were guaranteed by the debtor. The court also found that the deeds allowed the first applicant to lodge a caveat over the property and create a charge over the property by lodging a caveat. However, the court noted that the issue of priority between the two competing interests had not been determined, and both notices of motion would need to be relisted to allow for the balance of issues to be determined.

The court did not make a final determination of the competing claims of the two applicants. Instead, the court ordered that the hearing of both notices of motion be relisted to allow for the balance of issues to be determined. The court held that the first applicant was entitled to lodge a caveat over the property and create a charge over the property by lodging a caveat, but the issue of priority between the two competing interests had not been determined. The court also found that the registered proprietors were parties to the deeds despite the ambiguity in the deeds, and the deeds allowed for the creation of a charge over the property.

The court did not make any final orders in this matter. Instead, the court ordered that the hearing of both notices of motion be relisted to allow for the balance of issues to be determined. The court held that the first applicant was entitled to lodge a caveat over the property and create a charge over the property by lodging a caveat, but the issue of priority between the two competing interests had not been determined. The court also found that the registered proprietors were parties to the deeds despite the ambiguity in the deeds, and the deeds allowed for the creation of a charge over the property.

Orders