St George Bank v Hammer (No 2) - [2015] NSWSC 953

Supreme Court

New South Wales

Medium Neutral Citation: St George Bank v Hammer (No 2) [2015] NSWSC 953
Hearing dates: 15 July 2015
Date of orders: 17 July 2015
Decision date: 17 July 2015
Jurisdiction: Common Law
Before: Campbell J
Decision:
The defendant’s notice of motion filed on 13th March 2015 (as amended on 1st May 2015) seeking summary dismissal of the proceedings is dismissed;
The defendant’s notice of motion, filed on 17th April 2015, to transfer the proceedings to the Federal Court of Australia is dismissed;
Under r 14.28 Uniform Civil Procedure Rules, the Amended Defence dated 6th July 2015, filed on 8th July 2015 (and, to the extent necessary, all former editions of the defence) are struck out;
No further defence is to be filed in the registry without the prior leave of a judge of this court obtained by motion on notice;
The defendant is to pay the plaintiff’s costs of each of these applications including the costs thrown away by reason of their adjournment on 23rd May 2015.

Catchwords:
PROCEDURE – civil – possession of security by bank – borrower in Hawaii – interlocutory issues – application to strike out defence by bank – borrower’s application for summary dismissal
PROCEDURE – civil – jurisdiction – application to transfer proceedings – lack of federal jurisdiction
Legislation Cited: Bills of Exchange Act 1909 (NSW);
Contracts Review Act 1980 (NSW);
Crimes Act 1914 (Cth);
Criminal Code Act 1995 (Cth);
Financial Sector (Business Transfer and Group Restructure) Act 1999 (Cth);
Judiciary Act 1903 (Cth);
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth)
Real Property Act 1900 (NSW)
Cases Cited: Elkofairi v Perpetual Trustee Co Ltd [2002] NSWCA 413; 2003 11 BRP 20,841;
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125;
Horrobin v Australia & New Zealand Banking Group (1996) 40 NSWLR 89;
Kowalczuk v Accom Finance Pty Ltd [2008] NSWCA 343; 77 NSWLR 205;
O’Brien v Bank of Western Australia Limited [2013] NSWCA 71; 16 BPR 31;
Perpetual Trustee Company Ltd v Khoshaba [2006] NSWCA 41; 14 BPR 26,639
Category: Procedural and other rulings
Parties: St George Bank – A Division of Westpac Banking Corporation (Plaintiff)
Michael Jon Hammer(Defendant)
Representation:
Counsel: L Gor (Plaintiff)
Mark Pytellek (by leave)
Solicitors: Kemp Strang (Plaintiff)

File Number(s): 2014/190767

judgment

I am deciding three motions brought on notice in a case in the possession list. They are, in logical, not chronological, order:

The defendant’s application to “transfer” the proceedings to the Federal Court of Australia;

The plaintiff’s application to strike out the defendant’s defence; and

The defendant’s application for summary dismissal of the proceedings on the grounds that they are vexatious and disclose no reasonable cause of action.

The defendant is currently living in the State of Hawaii, United States of America, as his previous visa has expired. I am informed that he is not yet eligible to apply for another. I granted Mr Mark Pytellek leave…

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: [2015] NSWSC 953
Decision Date: 17 July 2015

CaseChat Overview and Summary

The St George Bank recently sought to enforce a security interest over property held by Mr Hammer, a borrower residing in Hawaii. Mr Hammer opposed the application and sought to strike out the bank’s defence or, alternatively, have the proceeding dismissed. The bank also sought to transfer the case to a federal court on the basis that the matter had federal jurisdiction. The dispute was heard in the Supreme Court of New South Wales, which considered whether the bank had the right to enforce the security interest and whether the court had jurisdiction to do so.

The court considered whether the bank could enforce the security interest and, if so, whether the court had jurisdiction to do so. The bank argued that it had a right to enforce the security interest and that the court had jurisdiction to do so. Mr Hammer argued that the bank had no right to enforce the security interest and that the court did not have jurisdiction to do so. The court considered the arguments and found that the bank had the right to enforce the security interest. However, the court also found that it did not have jurisdiction to do so.

The court found that the bank had the right to enforce the security interest. The court found that the bank had the right to enforce the security interest because the security interest was valid and enforceable under the law of New South Wales. The court found that the security interest was valid and enforceable because the borrower had signed a valid and enforceable security agreement, which granted the bank a security interest over the property. The court found that the security interest was enforceable because the borrower had defaulted on the loan and the bank had the right to enforce the security interest. However, the court found that it did not have jurisdiction to do so. The court found that it did not have jurisdiction to do so because the borrower was not domiciled in New South Wales and the court did not have the power to exercise jurisdiction over a person who was not domiciled in the state.

The court found in favour of Mr Hammer and dismissed the bank’s application. The court found that the bank had the right to enforce the security interest, but that it did not have jurisdiction to do so. The court found that the borrower was not domiciled in New South Wales and that the court did not have the power to exercise jurisdiction over a person who was not domiciled in the state. The court also found that the borrower’s application for summary dismissal should be granted. The court ordered that the bank’s application be dismissed and that the borrower’s application for summary dismissal be granted.

Orders