Westpac Banking Corporation v Corry - [2011] NSWSC 1014

Supreme Court

New South Wales

Medium Neutral Citation: Westpac Banking Corporation v Corry and Anor [2011] NSWSC 1014
Hearing dates: 26 August 2011
Decision date: 02 September 2011
Before: Johnson J
Decision:
Judgment is given to the Plaintiff against the Defendants for possession of the land comprised in Certificate of Title Folio Identifier XXX being all of the land situate at and known as XXX Road, Norong, New South Wales.
Leave is granted to the Plaintiff to issue a writ of possession in relation to the property known as XXX Road, Norong, New South Wales;
An order dismissing or striking out the Cross-Claim filed 25 July 2011 is declined.
The parties will be heard with respect to a stay and the question of costs.

Catchwords: MORTGAGES - claim for possession of land - mortgage default - application by Plaintiff for summary judgment - no arguable defence to claim for possession - summary judgment granted
Legislation Cited: Trade Practices Act 1974 (Cth)
Uniform Civil Procedure Rules 2005
Cases Cited: Dey v Victorian Railway Commissioners [1949] HCA 1; 78 CLR 62
General Steel Industries Inc v Commissioner of Railways (NSW) [1964] HCA 69; 112 CLR 125
Webster v Lampard [1993] HCA 57; 177 CLR 598
Cosmos E-C Commerce Pty Ltd v Bidwell and Associates Pty Ltd [2005] NSWCA 81
Inglis v Commonwealth Trading Bank of Australia [1972] HCA 74; 126 CLR 161
Horrobin v Australia and New Zealand Banking Group Limited (1996) 40 NSWLR 89
Category: Principal judgment
Parties: Westpac Banking Corporation (Plaintiff)
Kevin Patrick Corry and Wendy Elaine Corry (Defendants)
Representation: Mr J Hynes (Plaintiff)
Ms L Doust (Defendants)
Minter Ellison (Plaintiff)
Stacks The Law Firm (Defendants)

File Number(s): 2011/36061

Judgment

JOHNSON J : By Notice of Motion filed 11 August 2011, the Plaintiff, Westpac Banking Corporation, seeks orders in proceedings for possession of land against the Defendants, Kevin Patrick Corry and Wendy Elaine Corry.

The Plaintiff seeks summary judgment on its claim for possession under Rule 13.1 Uniform Civil Procedure Rules 2005 ("UCPR") or, alternatively, default judgment under Rule 16.4 UCPR with respect to the claim for possession of land known as XXX Road, Norong, New South Wales.

History of Proceedings

The present proceedings were commenced by Statement of Claim filed 3 February 2011. A Defence was filed on 4 May 2011.

The proceedings were referred to me in accordance with the judicial directions hearing procedure under the Possession List Practice Note. To that end, the proceedings have been before me on 15 and 17 June 2011, 27 and 28 July 2011 and 26 August 2011. Until the lastmentioned date, the Defendants were unrepresented.

On 17 June 2011, I made an order under Rule 14.28 UCPR striking out the Defence filed on 4 May 2011. Thereafter, the Defendants furnished a proposed draft Defence, in relation to which leave to file was sought, on 27 July 2011.

On 25 July 2011, the Defendants filed a Cross-Claim in the proceedings.

The Plaintiff's Summary Judgment Application

On…

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] NSWSC 1014
Decision Date: 02 September 2011

CaseChat Overview and Summary

The matter before the court was a claim by Westpac Banking Corporation against Mr Corry for possession of land due to a mortgage default. The case was heard in the Federal Circuit Court of Australia, where the Plaintiff sought summary judgment on the basis that there was no arguable defence to its claim for possession. The Plaintiff, Westpac Banking Corporation, argued that Mr Corry had failed to meet his obligations under the mortgage agreement, leading to a default. The court had to determine whether the Plaintiff's claim for possession was one in which the Defendant had no arguable defence, thereby warranting summary judgment.

The legal issue before the court was whether the Defendant had a viable defence to the Plaintiff's claim for possession of the property. The court considered the terms of the mortgage agreement, the evidence of default, and whether there were any circumstances that could constitute a defence. The court found that the evidence presented demonstrated that the Defendant had indeed defaulted on the mortgage, and that there were no mitigating factors or legal defences that could be argued by the Defendant. The court concluded that the Plaintiff had met the threshold for summary judgment as there was no arguable defence to the claim for possession.

The court granted the Plaintiff's application for summary judgment, finding that there was no arguable defence to the claim for possession. The court held that the Defendant's default under the mortgage agreement was clear and that no circumstances presented a valid legal defence to the Plaintiff's claim. The court ordered that possession of the property be returned to the Plaintiff, Westpac Banking Corporation. This decision reinforced the importance of adhering to the terms of a mortgage agreement and the consequences of defaulting on such obligations.

Orders