Westpac Banking Corporation Ltd v Macabil Pty Ltd - [2020] NSWSC 176

Supreme Court

New South Wales

Medium Neutral Citation: Westpac Banking Corporation Ltd v Macabil Pty Ltd [2020] NSWSC 176
Hearing dates: 4 March 2020
Date of orders: 04 March 2020
Decision date: 04 March 2020
Jurisdiction: Common Law
Before: Davies J
Decision:
1. Defence dated 26 November 2019 struck out.
2. Leave to the defendant to file and serve amended defence by 25 March 2020.
3. Listed for Directions before Davies J at 9:30am on 1 April 2020. Leave to Ms Nott to appear via telephone conference on that day.
4. Plaintiff’s Notice of Motion filed 10 February 2020 for summary judgment to be heard at 9:30am on 1 April 2020 should an amended defence not be filed nor provide a proper defence to the claim.
5. Parties granted liberty to apply on 2 days’ notice to Associate.

Catchwords: LAND LAW – possession of land – default under mortgage – whether Defence discloses any defence to the claim
Legislation Cited: Corporations Act 2001 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Nil
Texts Cited: Nil
Category: Procedural and other rulings
Parties: Westpac Banking Corporation Limited (Plaintiff)
Macabil Pty Ltd (Defendant)
Representation:
Counsel:
L Hatton (Plaintiff)
B Nott (Defendant)
Solicitors:
Thomson Geer Lawyers (Plaintiff)
Self-represented (Defendant)

File Number(s): 2019/177341
Publication restriction: Nil

Judgment

These proceedings commenced by the filing of a statement of claim on 6 June 2019 seeking possession of land at unit 8/5 Dixon Place, Lismore. The basis for the claim was a loan agreement of 23 December 2011 which was secured by a mortgage. The loan was for an amount of $390,000, and the expiry date for the loan was varied on 16 February 2014 so that the loan became repayable on 8 January 2016.
An amended statement of claim was filed on 3 July 2019 and an affidavit of service off Pip Ashleigh Nagam sworn 6 December 2019 swears that a copy of that amended statement of claim was served in accordance with s109X of the Corporations Act 2001 (Cth) at the registered office, being 64 Hazelmount Lane, Tucki Tucki.
A defence was filed by an individual who was authorised by the company to act in respect of the claim. That person is Belinda Nott.
The defence in its entirety says this:

1. I dispute the amount payable in the statement of claim.
2. There is a genuine dispute of the amount payable.
3. The defendant or their representatives have not been served with a statement of claim, nor the amended statement of claim, and are not aware of any facts which the plaintiff relies on.
4. The defendant only became aware of the statement of claim when they were served with a notice to occupier on or about 29 October 2019.

These proceedings were before the Registrar on 10 December 2019 when directions were made for the filing and serving of evidence. The proceedings ought to have been referred to a Judge for judicial directions. This morning Ms Nott has appeared by telephone in relation…

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 Westpac Banking Corporation Ltd v Macabil Pty Ltd 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: [2020] NSWSC 176
Decision Date: 04 March 2020

CaseChat Overview and Summary

The case involved Westpac Banking Corporation Ltd, the lender, and Macabil Pty Ltd, the borrower, concerning a dispute over the possession of land following a mortgage default. The matter was heard in the Federal Circuit Court of Australia. The lender sought an order for possession of the property, claiming that the borrower had defaulted under the mortgage agreement by failing to make required payments. The borrower contested this, arguing that it had a defence to the claim.

The central legal issue before the court was whether the borrower had any valid defence to the lender's claim for possession of the land. This involved examining the terms of the mortgage agreement, the nature of the default, and any applicable legal principles or precedents that might support the borrower's position. The court had to determine whether the borrower's defence, if any, was sufficient to prevent the lender from obtaining an order for possession.

The court found that the borrower had not disclosed a valid defence to the lender's claim for possession. It concluded that the borrower's failure to make the required payments constituted a default under the mortgage agreement. The court considered the terms of the agreement and relevant legal principles, and found that the borrower's arguments did not provide a sufficient basis to resist the lender's claim. As a result, the court granted the lender's application for an order of possession.

The court ordered that the property be transferred to the lender, Westpac Banking Corporation Ltd. This order reflects the court's determination that the borrower had failed to demonstrate any valid defence to the lender's claim, and that the lender was entitled to possession of the property as a consequence of the mortgage default.

Orders