Westpac Banking Corporation Ltd v Kay

[2019] NSWSC 929

Supreme Court

New South Wales

Medium Neutral Citation:

Westpac Banking Corporation Ltd v Kay [2019] NSWSC 929

Hearing dates:

22 July 2019

Date of orders:

22 July 2019

Decision date:

22 July 2019

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Pursuant to r 6.24 Uniform Civil Procedure Rules 2005 (NSW) order that Thomas James Clinton be added as the second defendant in the proceedings.

 

2. Any defence and cross-claim by the second defendant is to be filed and served by 12 August 2019.

 3. Costs reserved to the final hearing.

Catchwords:

CIVIL PROCEDURE – parties – addition of defendant – possession proceedings - where defendant was former trustee of discretionary trust – where additional defendant is new trustee

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW) rr 6.19, 6.24

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural and other rulings

Parties:

Westpac Banking Corporation Limited (Plaintiff)
Paul William Kay (Defendant)
Thomson James Clinton (Applicant on the Motion)

Representation:

Counsel:
T Fishburn (Plaintiff)
No appearance (Defendant)
B Levet (Applicant on the Motion)

Solicitors:
Thomson Geer Lawyers (Plaintiff)
Baker Love Lawyers (Defendant)
N A Lawyers (Applicant on the Motion)

File Number(s):

2019/47999

Publication restriction:

Nil

Judgment

1. The plaintiff commenced these proceedings on 13 February 2019, claiming possession of a property at 16 Follan Close, Kariong. The basis of the claim for possession is a default under a mortgage which is alleged to have been obtained at or around the time of purchase of the property on 28 June 2013.

2. The defendant has been served with the statement of claim but has not filed either a notice of appearance or a defence to the claim.

3. By notice of motion filed 20 March 2019 the applicant, Thomas James Clinton, seeks an order that he be joined as a second defendant in the proceedings, and when joined that he be given leave to file and serve any cross-claim upon which he relies within a stipulated period.

4. The basis of Mr Clinton's claim to be added as a defendant in the proceedings is set out in an affidavit sworn by him on 13 March 2019. In that affidavit Mr Clinton says that the property in Kariong was purchased by the defendant as trustee for the Falcon Discretionary Trust of which Mr Clinton is the appointor.

5. The affidavit details difficulties which have arisen between Mr Clinton and the defendant, and these difficulties led to Mr Clinton removing the defendant as trustee of the Falcon Discretionary Trust on or about 4 August 2018. On that day Mr Clinton, as he appears entitled to do under the terms of the trust, appointed himself as the new trustee of the trust. In those circumstances, he seeks to be added as a party to defend the trust's interests in the claim made by the plaintiff.

6. The plaintiff's position is that it entered into the mortgage with the defendant knowing nothing about any trust. As far as the plaintiff was concerned, the defendant was the borrower under the loan agreement and he was the person who signed the mortgage in favour of the plaintiff.

7. On the present application, the plaintiff has read an affidavit sworn by the defendant on 24 June 2019. That affidavit in summary says that the defendant was asked by a friend of his to become the trustee of a trust known as the Bayview Discretionary Trust. The defendant ultimately agreed to do that and he says that he signed the trust deed of the Bayview Discretionary Trust, being appointed as trustee. He says that he knew nothing about the Falcon Discretionary Trust. He also denies that the signature that appears on the mortgage purportedly given to Westpac by him is his signature.

8. In short, the defendant says that he knows nothing about the Falcon Discretionary Trust nor the Kariong property nor its purchase or mortgaging.

9. The plaintiff opposes Mr Clinton being added as the defendant on the basis that as far as the plaintiff is concerned the claim it has against the defendant is a simple claim for possession based on the execution by him of the mortgage to the plaintiff and to default under that mortgage.

10. I am satisfied by reason of the evidence contained in both Mr Clinton's and the defendant's affidavits that the issues between the parties will not properly be determined unless the present trustee of the Falcon Discretionary Trust is made a party to the proceedings. That person is Thomas James Clinton.

11. Mr Clinton seeks to be joined in reliance on Uniform Civil Procedure Rules 2005 (NSW) r 6.19. Whilst that rule may be appropriate, I consider that the more appropriate rule to base his joinder is UCPR r 6.24 which provides that the Court may join a person if the Court considers the person ought to have been joined as a party or whose joinder as a party is necessary to the determination of all matters in dispute in the proceedings.

12. Accordingly, I make this order:

Pursuant to Rule 6.24 Uniform Civil Procedure Rules 2005 (NSW), I order that Thomas James Clinton be added as a second defendant in the proceedings.

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Decision last updated: 22 July 2019