Westpac Banking Corporation v Glynn - [2022] NSWSC 1770

Supreme Court

New South Wales

Medium Neutral Citation: Westpac Banking Corporation v Glynn [2022] NSWSC 1770
Hearing dates: 15 December 2022
Date of orders: 15 December 2022
Decision date: 15 December 2022
Jurisdiction: Common Law
Before: Beech-Jones CJ at CL
Decision:
See [33]

Catchwords:
SUMMARY JUDGMENT – possession of land – no question of principle

Legislation Cited:
Real Property Act 1900
National Credit Code
Uniform Civil Procedure Rules 2005

Cases Cited:
McFarlane v McFarlane [2021] VSC 197
Re Culleton [2016] FCA 1193
Tomasevic v Travaglini (2007) 17 VR 100; [2007] VSC 337 at [140]

Category: Principal judgment
Parties: Westpac Banking Corporation (ABN 33 007 457 141) (Plaintiff)
Susan Gabrielle Glynn (Defendant)
Representation:
Counsel:
M Paterson, Minter Ellison (Plaintiff)
Self-represented (Defendant)
Solicitors:
Minter Ellison (Plaintiff)
Self-represented (Defendant)

File Number(s): 2021/208023

EX TEMPORE JUDGMENT (revised from transcript)

This judgment concerns a notice of motion filed on 1 September 2022 seeking summary judgment of a claim for possession of land at Mandalong, based upon default in payment of loan amounts said to be owing under a mortgage.

Background

The plaintiff, Westpac Banking Corporation (“Westpac”), seeks possession of the subject property pursuant to a mortgage the defendant, Ms Glynn, was said to have been entered into on 4 March 2009. The mortgage was said to secure two loan facilities proffered to Ms Glynn being two loan accounts, one with a limit of $150,000 and the second with a limit of $280,000.
The terms of the loan facilities were varied from time to time including by an extension of their repayment date. Clause C2 of the common provisions to the mortgage contained a term, often included in mortgages, that provided if there was a failure to make a payment due, and the failure continued for at least seven days, then the lender may notify of the failure, and if that failure continues for at least 31 days up to service of the notice, then the lender may take possession of the property.
Westpac contends that by 28 October 2020 Ms Glynn was in default under the first loan account for an amount of $17,322.34, which had been outstanding for a period of at least seven days. On the following day it served a notice, both under section 57(2)(b) of the Real Property Act 1900 and section 88 of the National Credit Code in respect of that default which was not remedied within the time period stipulated.
With that breach still not having been remedied, Westpac commenced these proceedings by filing a statement of claim on 21 July 2021, in the short‑form seeking possession. There were difficulties with service and substituted service was effected in early March of this year. After some exchange of materials, a defence was eventually filed on about 15 August 2022. It was the terms of that defence that warranted this summary judgment application.
The notice of motion was first listed for hearing before me on 1 December 2022. On that day Ms Glynn indicated that she had not received a…

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: [2022] NSWSC 1770
Decision Date: 15 December 2022

CaseChat Overview and Summary

In the case of Westpac Banking Corporation v Glynn, the dispute arose in the Federal Court of Australia, involving the bank's application for summary judgment against the defendant, who was in possession of a property. The primary contention was whether the bank could secure possession of the property without the necessity of a full trial, given the uncontested nature of certain facts. This case revolved around the interpretation and application of property law, specifically focusing on the rights and obligations of the parties in the context of mortgagee possession proceedings.

The legal issues before the court involved the interpretation of the National Consumer Credit Protection Act 2009 (Cth) and the National Credit Code, as well as the principles governing summary judgment applications. The court needed to determine whether the undisputed facts were sufficient to conclude that the bank was entitled to possession of the property without the need for a trial. The central issue was whether the bank had satisfied the legal requirements to obtain summary judgment in cases involving possession of property due to default under a credit contract.

The court held that the bank had met the criteria for summary judgment. The undisputed facts demonstrated that the defendant had defaulted on the mortgage payments, leading to the bank's right to possession of the property. The court reasoned that, given the absence of any genuine dispute regarding the material facts, the bank was entitled to the relief sought. The principles of property law and the statutory provisions supported the bank's application, as there was no question of principle that warranted a trial. The court therefore granted the bank's application for summary judgment.

The final orders of the court mandated that the defendant, Glynn, vacate the property within a specified period. The bank was also granted possession of the property, and the defendant was ordered to pay the costs associated with the application. The judgment reflected the court's determination that the undisputed facts provided a clear basis for the grant of summary judgment, thereby resolving the dispute without the need for a full trial.

Orders