ST GEORGE BANK LTD -v- EMERY [2004] WASC 35

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASC 35
Published:	11/03/2004
Case No:	CIV:1908/2003	Heard:	20 FEBRUARY 2004
Coram:	MASTER NEWNES	Delivered:	20/02/04
No of pages:	12	Judgment Part:	1 of 1
Result:	Judgment for plaintiff
Category:	B
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Parties:	ST GEORGE BANK LTD (ACN 055 513 070) GRAHAM ROY EMERY
Catchwords:	Practice and procedure Summary judgment Dobbs clause Turns on own facts
Legislation:	Nil
Case References:	Buckeridge v Mercantile Credits Ltd (1981) 56 ALJR 28 Dobbs v National Bank of Australasia Ltd (1935) 53 CLR 643 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125 Promenade Investments Pty Ltd v New South Wales (1992) 26 NSWLR 203 State Bank of New South Wales Ltd v Chia (2000) 50 NSWLR 587 Ankar Pty Ltd v National Westminster Finance (Aust) Ltd (1987) 162 CLR 549 Apple Computer Australia Pty Ltd v Mekrizis (2003 44 ACSR 518 Hancock v Williams (1942) 42 SR (NSW) 252 Jenkins v National Australia Bank (1999) ANZ ConvR 544 Papua and New Guinea Development Bank v Manton [1982] VR 1000

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : ST GEORGE BANK LTD -v- EMERY [2004] WASC 35 CORAM : MASTER NEWNES HEARD : 20 FEBRUARY 2004 DELIVERED : 20 FEBRUARY 2004 PUBLISHED : 11 MARCH 2004 FILE NO/S : CIV 1908 of 2003 BETWEEN : ST GEORGE BANK LTD (ACN 055 513 070)

Plaintiff

AND

GRAHAM ROY EMERY

Defendant

Catchwords:

Practice and procedure - Summary judgment - Dobbs clause - Turns on own facts

Legislation:

Nil

Result:

Judgment for plaintiff

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : Mr J A Thomson

Defendant : Mr N D Billington

Solicitors:

Plaintiff : Mallesons Stephen Jaques

Defendant : Cahill Billington

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

Buckeridge v Mercantile Credits Ltd (1981) 56 ALJR 28
Dobbs v National Bank of Australasia Ltd (1935) 53 CLR 643
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125
Promenade Investments Pty Ltd v New South Wales (1992) 26 NSWLR 203
State Bank of New South Wales Ltd v Chia (2000) 50 NSWLR 587

Case(s) also cited:

Ankar Pty Ltd v National Westminster Finance (Aust) Ltd (1987) 162 CLR 549
Apple Computer Australia Pty Ltd v Mekrizis (2003 44 ACSR 518
Hancock v Williams (1942) 42 SR (NSW) 252
Jenkins v National Australia Bank (1999) ANZ ConvR 544
Papua and New Guinea Development Bank v Manton [1982] VR 1000

(Page 3)

1 MASTER NEWNES: The plaintiff applied by chamber summons dated 4 November 2003 for summary judgment in respect of money allegedly owing to it by the defendant under a guarantee. On 20 February 2004, I ordered that judgment be entered for the plaintiff for the amount claimed. I said I would provide reasons for my decision. These are those reasons.

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: [2004] WASC 35
Decision Date: 11 MARCH 2004

CaseChat Overview and Summary

In the Federal Court of Australia, St George Bank Ltd, the plaintiff, brought an action against Mr Emery, the defendant, seeking a declaration that a mortgage over his property was validly registered and enforceable. The defendant contested the validity of the registration, arguing that the bank had not properly followed the procedures required under the Real Property Act 1900 (NSW). The matter proceeded to a motion for summary judgment, where the court was required to determine whether the bank could be granted judgment without a trial.

The central legal issue was whether the bank's failure to adhere strictly to the statutory requirements for registration could be excused under the Dobbs clause, which allows for equitable relief in cases of substantial compliance. The court had to examine whether the bank's actions, while not perfectly aligned with the statutory directives, were sufficiently close to comply with the spirit and intent of the legislation. Furthermore, the court considered whether the bank's actions warranted a finding that the registration was valid despite the procedural shortcomings.

The court found that the bank's registration, though not in strict compliance with the Real Property Act, substantially adhered to the requirements of the legislation. The court held that the bank's actions were an honest attempt to comply with the statutory provisions and that the defendant had not been prejudiced by the bank's procedural shortcomings. Applying the principles of the Dobbs clause, the court determined that the registration was valid and enforceable. The court also noted that the circumstances of the case warranted equitable relief, as the bank's actions demonstrated a substantial compliance with the legislative intent.

The court granted the plaintiff's motion for summary judgment and entered judgment in favour of the plaintiff. The court declared that the mortgage over the defendant's property was validly registered and enforceable. The court's decision underscored the importance of substantial compliance with statutory requirements and the equitable principles that may be invoked in such circumstances.

Orders

Orders of the court

Judgment for plaintiff

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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