Upton v Westpac Banking Corporation

Upton, a guarantor of a loan facility, appeals against a summary judgment obtained by Westpac Banking Corporation in the District Court, which ruled in favour of the bank in its action for a debt owed by the guarantor. The guarantor argues that the judgment should be set aside or an extension of time granted to appeal, as the delay was due to the bank’s failure to sell a mortgaged property, which the guarantor claims constituted a breach of duty under the Property Law Act 1974 (Qld). The guarantor also contends that the primary judge erred in dismissing the application to stay the execution of the summary judgment pending the determination of the counterclaim. The primary issues for the court to decide were whether the explanation for the delay in filing the appeal and the merit of the proposed appeal warrant an extension of time, and whether the counterclaim warranted a stay of the summary judgment.

The court dismissed the appeal as the application for leave to appeal was out of time. The court found that the explanation for the delay was not sufficient to warrant an extension of time, and the merit of the proposed appeal did not justify an extension. The court also found that the guarantor’s claim against the bank did not warrant a stay of the summary judgment. The court held that the bank did not breach its duty under the Property Law Act 1974 (Qld) by failing to sell the mortgaged property, and the guarantor’s counterclaim did not have sufficient merit to warrant a stay of the summary judgment.

The court ordered that the appeal be dismissed, the amended application filed on 15 June 2016 be refused, and the application filed on 9 August 2016 be refused. The court also ordered that the guarantor pay the costs of the appeal, the amended application, and the application filed on 9 August 2016.