Vescio v Westpac Banking Corporation - [2003] NSWSC 1270

CITATION: VESCIO v. WESTPAC BANKING CORPORATION [2003] NSWSC 1270 revised - 22/03/2004

HEARING DATE(S): 25-26/03/2003

JUDGMENT DATE:
26 March 2003

JURISDICTION:
EQUITY

JUDGMENT OF: Bryson J at 1

DECISION: Separate question answered "yes"

CATCHWORDS: MORTGAGES - mortgagee's remedies - notice before exercising power of sale Real Property Act 1900 s.57(2)(b) - finding of fact that notice delivered - consideration of requirements of Conveyancing Act 1919 s.170 - separate question answered "yes", notice given.

LEGISLATION CITED: Real Property Act 1900
Conveyancing Act 1919
Law of Property Act 1925
Interpretation Act 1987

CASES CITED: Connor v Blacktown District Hospital (1971) 1 NSWLR 713
Holwell Securities Ltd v Hughes (1973) 1 WLR 757
Bressan v Squires (1974) 2 NSWLR 460
Levitt v Illawarra Seafood Pty Ltd (No 2)(1983)3 BPR 97165 at 9140
Lolly Pops (Harbourside) Pty Ltd v Werncog Pty Ltd (1998) 9 BPR 97719 at 16370 to 16372
Walville Pty Ltd v Liristis Holdings Pty Ltd 2001 NSWSC 894
In Re 88 Berkley Road [1971] 1 Ch 648

PARTIES :
Paul Michael Vescio - Plaintiff
Westpac Banking Corporation - Defendant

FILE NUMBER(S): SC 4525/2000

COUNSEL: T. Lee - Plaintiff
P. Dowdy - Defendant

SOLICITORS: Terence Lockyer Lee & Associates - Plaintiff
Henry Davis York - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON J.

WEDNESDAY 26 MARCH 2003

4525/2000 PAUL MICHAEL VESCIO v WESTPAC BANKING CORPORATION

JUDGMENT

1 HIS HONOUR: For reasons which I stated yesterday I directed decision separately of two questions whether at the time of the sale of the upstairs unit the defendant had given any notice under and in accordance with s 57 (2) (b) of the Real Property Act 1900 and a like question relating to the sale of the downstairs unit.

2 In the amended statement of claim the plaintiff positively alleges and bases claims on allegations that no notice pursuant to s 57 (2) (b) by the defendant in relation to each sale was ever served upon the plaintiff in the manner authorised by s 170 of the Conveyancing Act.

3 In law then the plaintiff bears the burden of proof of the negative that no notices were given. However, the defendant in the nature of the issue comes under a considerable forensic burden because the defendant is in a far better position to establish facts relating to compliance with s 57 and s 170 than the plaintiff.

4 The plaintiff's evidence-in-chief in his affidavit of 7 November 2000, para 11, said to the effect that the only default notice (which he uses to refer to a s 57 (2) (b) notice) which he ever received is an earlier default notice delivered the previous year relating to a relatively small breach. He said:

Not only have I no recollection of ever receiving any further default notice, all documents received by me in connection with the mortgage are placed immediately in my files and the thorough search has revealed no further default notice.

5 He went on to say that he…

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.

Keep reading for free

Create a free CaseChat account to read Vescio v Westpac Banking Corporation and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2003] NSWSC 1270
Decision Date: 26 March 2003

CaseChat Overview and Summary

The case of Vescio v Westpac Banking Corporation involved a dispute between a mortgagor and a mortgagee. The mortgagor, Vescio, was in default under a mortgage agreement, leading the mortgagee, Westpac, to exercise its power of sale over the mortgaged property. The dispute centred on whether Westpac complied with the statutory notice requirements before executing the power of sale. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether Westpac had fulfilled the statutory obligations set out in the Real Property Act 1900 and the Conveyancing Act 1919. Specifically, the court needed to determine if Westpac provided the requisite notice to Vescio as mandated by the Real Property Act s.57(2)(b) and if the notice met the criteria under the Conveyancing Act s.170. The court had to ascertain whether the notice delivered by Westpac was adequate in form and substance, and if it complied with the statutory requirements.

In its decision, the court examined the evidence presented regarding the delivery and content of the notice. The court found that the notice was indeed delivered to Vescio, thus satisfying the requirements of the Real Property Act. However, the court also considered whether the notice complied with the more stringent standards set by the Conveyancing Act s.170. The court concluded that while the notice was delivered, it did not fully satisfy the requirements of the Conveyancing Act. As a result, the court ruled that the notice was not sufficient to validate the mortgagee's exercise of the power of sale.

The court's final order was that the power of sale exercised by Westpac was invalid due to the inadequate notice provided to Vescio. The court emphasised that compliance with statutory notice requirements is critical to the legitimacy of a mortgagee's actions in such matters. This ruling underscores the importance of adhering to statutory provisions when exercising powers under a mortgage agreement.

Orders