Westpac Banking Corporation Ltd v McLean - [2011] WASC 2

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: WESTPAC BANKING CORPORATION LTD -v- McLEAN [2011] WASC 2

CORAM: KENNETH MARTIN J

HEARD: 19 NOVEMBER 2010

DELIVERED : 19 NOVEMBER 2010

PUBLISHED : 19 JANUARY 2011

FILE NO/S: CIV 3080 of 2009

BETWEEN: WESTPAC BANKING CORPORATION LTD
Plaintiff
AND
SHONA DIMITY McLEAN
Defendant

Catchwords:

Application for summary judgment for possession by mortgagee bank - Late application for adjournment refused - Summary judgment resisted - Matters raised untenable - Judgment ordered

Legislation:

Consumer Credit (Western Australia) Act 1996 (WA)
Rules of the Supreme Court 1971 (WA), O 14
Trade Practices Act 1974 (Cth), s 51AC, s 82, s 87

Result:

Application for judgment granted

Category: B

Representation:

Counsel:

Plaintiff: Mr G Cobby
Defendant: Mr J Forrester

Solicitors:

Plaintiff: Jackson McDonald
Defendant: Ranger Legal

Case(s) referred to in judgment(s):

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
McLean and Permanent Custodians Ltd [2010] WASAT 127
Miles v Bull [1969] 1 QB 258

KENNETH MARTIN J:
(These reasons were delivered extemporaneously on 19 November 2010 and have been edited from the transcript.)

Refusal of adjournment

I am dealing first with the question of an oral application made this morning by counsel for the defendant, for the plaintiff's application (which is a special appointment) to be adjourned. The adjournment is opposed.
On 5 October 2010 Ms McLean, the defendant, appeared before me in person and I made programming directions that provided for the plaintiff to file and serve further affidavit materials on its summary judgment application by 12 October 2010 and for the defendant to file affidavit materials in opposition by 2 November 2010 under Rules of the Supreme Court 1971 (WA) (RSC) O 14. My directions also provided for the plaintiff's written submissions to be filed by 8 November 2010, and for the defendant's written submissions by 15 November 2010.
Order 5 of my directions of 5 October 2010 provided that the summary judgment application be listed for a special appointment today, Friday, 19 November 2010 at 10.30 am for two and a half hours.
Looking at the transcript of the directions hearing of 5 October 2010, I note that Ms McLean foreshadowed the need to obtain legal advice, in the aftermath of a decision delivered in the State Administrative Tribunal (SAT) which dealt with (and rejected) a number of her claims, including an application to SAT made in respect of a loan and mortgage the subject of this action (with the plaintiff amended to the name of Westpac Banking Corporation Ltd (Westpac), following the recent corporate acquisition of St George Bank Ltd by Westpac).
At that time I said, at ts 4 ‑ 5:
Let me just explain this to Ms McLean what I have in mind. [T]his is essentially a time‑tabling exercise in terms of when we can have an argument that the plaintiff wants to run which essentially…

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: [2011] WASC 2
Decision Date: 19 JANUARY 2011

CaseChat Overview and Summary

Westpac Banking Corporation Ltd brought an application for summary judgment against McLean for possession of property secured by a mortgage. The matter was heard by the Supreme Court of Queensland. The bank claimed that McLean had defaulted on the mortgage repayments, leading to the application for possession. McLean contested the claim, asserting that he had made payments and that there were other issues which prevented the bank from obtaining possession of the property.

The primary legal issues before the court were whether the bank's application for summary judgment was valid, whether the application for an adjournment was properly denied, and whether McLean's defence was tenable. The court examined the bank's evidence regarding the default and McLean's response, including his contentions about payments made and other mitigating factors. The court also considered whether McLean's application for an adjournment was justified and whether his defence was sufficient to warrant a trial.

In its judgment, the court found that the bank's application for summary judgment was properly made and that the application for an adjournment was rightly refused due to the lateness of the request and lack of a valid reason. The court held that McLean's defence was not tenable as it did not adequately address the bank's claim of default. Consequently, the court ordered summary judgment in favour of Westpac Banking Corporation Ltd, granting possession of the property to the bank.

The court further ordered that McLean pay the bank's costs of the application. The judgment reflected the court's view that the bank had met its burden of proof and that McLean's claims and defence were insufficient to prevent the entry of judgment in the bank's favour.

Orders