Westpac Banking Corporation v Chamberlain - [2016] SASC 3

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
WESTPAC BANKING CORPORATION v CHAMBERLAIN & ANOR
[2016] SASC 3
Reasons of Judge Dart a Master of the Supreme Court
21 January 2016
REAL PROPERTY - TORRENS TITLE - MORTGAGES, CHARGES AND ENCUMBRANCES - POWERS AND REMEDIES OF MORTGAGEE - POSSESSION - GENERALLY
Plaintiff registered mortgagee - defendants in default - whether defendants have made out arguable defence - defendants claim superior Native Title - Native Title extinguished - no defence made out.
Law of Property Act 1936 (SA); Real Property Act 1886 (SA) s 192; Native Title Act 1993 (Cth) s 23B; Native Title (South Australia) Act 1994 s 36F, referred to.
Corporation of the Town of Moonta v Rodgers and Rodgers 26 SASR 143; Westpac Banking Corporation v Chadah [2012] SASC 223, applied.

WESTPAC BANKING CORPORATION v CHAMBERLAIN & ANOR
[2016] SASC 3
JUDGE DART:

The plaintiff is the registered mortgagee of land owned by the defendants. The plaintiff commenced these proceedings seeking an order pursuant to s 192 of the Real Property Act 1886 for the possession of the mortgaged land. It was entitled to such an order and an order to that effect was made on 20 January 2016. These reasons explain why the order was made.
Possession proceedings are usually dealt with in a summary way. If a defendant can establish an arguable defence, then the parties will be directed to file pleadings and the matter will proceed in the usual way for a civil action.[1]
[1] Corporation of the Town of Moonta v Rodgers and Rodgers (1981) 26 SASR 143.
The normal approach to these matters was considered by Peek J in Westpac Banking Corporation v Chadah where he said: [2]
In summary, provided that the applicant for an order for possession has met the requirements specified in Part XVII, Real Property Act 1886, the applicant is prima facie entitled to that order. However, if the Court is satisfied that the defendant has raised an arguable case supported by some evidence which, if accepted, could give rise to a particular defence, the matter may be referred to the ordinary civil trial list for determination.
[2] [2012] SASC 223 at [35].
Background
The defendants made an application to the plaintiff for a loan in early 2009. The plaintiff agreed to provide a loan to the defendants. The terms of the loan were contained in a written loan agreement dated, and apparently executed by the defendants, on 27 March 2009.
On the same day that the written loan agreement was executed, the defendants also executed a memorandum of mortgage by which they secured their obligations under the written loan agreement.
The defendants fell into arrears in respect of their obligations pursuant to the written loan agreement. No payments have been made to the plaintiff since 2012. The amount of the debt due to the plaintiff is now said to exceed the value of the mortgaged property. The requisite default notices were served and these proceedings commenced…

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: [2016] SASC 3
Decision Date: 21 January 2016

CaseChat Overview and Summary

The case of Westpac Banking Corporation v Chamberlain concerned a dispute over a mortgaged property, with the plaintiff, Westpac Banking Corporation, seeking an order for possession against the defendants, Chamberlain. The defendants defaulted on a loan secured by a mortgage on the property, and the debt exceeded the property’s value. The defendants attempted to contest the possession order by claiming superior Native Title to the property. The matter was heard in the Supreme Court of South Australia.

The primary legal issue was whether the defendants had established an arguable defence to the plaintiff's claim for possession. To avoid a summary order for possession, the defendants needed to demonstrate that they had a credible defence supported by some evidence. The defendants argued that Native Title existed over the property, which was superior to the mortgage held by the plaintiff. The court needed to determine whether this argument constituted an arguable defence.

The court found that the defendants had not made out an arguable defence. Despite the defendants’ assertions regarding Native Title, the court considered the argument to be largely unintelligible and lacking in credible evidence. The court noted that Native Title had been extinguished in relation to the property and that no valid claim of Native Title was presented. The court concluded that the defendants had not raised a defence that, if accepted, could defeat the plaintiff's claim for possession. Consequently, the court found no arguable defence had been established, and the plaintiff was entitled to an order for possession.

The final orders of the court were that the defendants pay the plaintiff's costs of the proceeding up to the date of hearing and that the defendants vacate the mortgaged property within 28 days. The court granted the plaintiff’s application for possession of the property.

Orders

Orders of the court

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Background

Background to the litigation

The normal approach to these matters was considered by Peek J in Westpac Banking Corporation v Chadah where he said: [2]In summary, provided that the applicant for an order for possession has met the requirements specified in Part XVII, Real Property Act 1886, the applicant is prima facie entitled to that order. However, if the Court is satisfied that the defendant has raised an arguable case supported by some evidence which, if accepted, could give rise to a particular defence, the matter may be referred to the ordinary civil trial list for determination. [2] [2012] SASC 223 at [35].Background The defendants made an application to the plaintiff for a loan in early 2009. The plaintiff agreed to provide a loan to the defendants. The terms of the loan were contained in a written loan agreement dated, and apparently executed by the defendants, on 27 March 2009. On the same day that the written loan agreement was executed, the defendants also executed a memorandum of mortgage by which they secured their obligations under the written loan agreement. The defendants fell into arrears in respect of their obligations pursuant to the written loan agreement. No payments have been made to the plaintiff since 2012. The amount of the debt due to the plaintiff is now said to exceed the value of the mortgaged property. The requisite default notices were served and these proceedings commenced in January 2015. The proceedings were initially delayed by reason of the defendants having made a complaint to the Financial Ombudsman Service. That complaint has been disposed of.Is there an arguable defence? To avoid the Court making a summary order for possession in favour of the plaintiff, it was necessary for the defendants to establish that they had an arguable defence. No documents have been filed at Court by the defendants. However, a number of documents have been forwarded to the Court. They had not been filed because they were not in an appropriate form to be filed. This matter was called on for hearing on 9 December 2015. The defendants did not appear. They did, however, send an email to the Court which said in part:Movants will not be attending the scheduled hearing of 9th Dec 2015. Attending The Court’s scheduled hearing would grant illegal and unlawful jurisdiction to The Court. Movants have no wish or desire to violate any law germane to native rights. Attached to the email were two documents which had been previously provided to the Court. The first document appeared to be in the nature of submissions. The second document is headed:IN THE SUPREME COURT OF THE WAWARRUNGGA RAVEN TRIBE OF AUSTRALIA IN ASSOCIATION WITH THE NATIVE AMERICAN LAW AND JUSTICE CENTER, OHIO, UNITED STATES OF AMERICA. The second document was said to be a civil complaint instituted by the second defendant as “an enrolled tribal member”. The material contained in both documents is largely unintelligible. For present purposes I ignored the second document. The hearing on 9 December 2015 was adjourned to 16 December 2015. That hearing was adjourned by consent to 20 January 2016 to permit the defendants to obtain legal advice. The defendants did not appear on 20 January 2016. Prior to the hearing a further email was sent to the Court by the defendants. The email said, inter alia, that:1.We have retained overseas Counsel, a member of the International Bar Assocation (IBA). Judge Navin C Naidu …2.Chief Judge Silver Cloud Musafir (Judge Naidu) works exclusively for Canadian, American and Australian Tribal governments.…5.Before Westpac can determine foreclosing on the property they have to evidence title that is superior to Native Title as Native Title predates the Australian Constitution.…8.We would also ask that 90 days is needed to get Native Title to you as the Tribe is on walkabout divining what constitutes a legal claim to Native Title.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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