Westpac Banking Corporation v Howard - [2015] QDC 76

DISTRICT COURT OF QUEENSLAND

CITATION:

Westpac Banking Corporation v Howard [2015] QDC 76

PARTIES:

WESTPAC BANKING CORPORATION
(ABN 33 007 457 141)

Plaintiff/Respondent

v

GLENN MATTHEW HOWARD

Defendant/Applicant

FILE NO:

D 78/11

PROCEEDING:

Application to extend time for filing and serving an application to set aside a default judgment and affidavits in support of that application.

Application to set aside default judgment.

ORIGINATING COURT:

District Court, Southport

DELIVERED ON:

10 April 2015

DELIVERED AT:

Southport

HEARING DATE:

27 March 2015

JUDGE:

Judge CF Wall QC

ORDERS:

Time extended; judgment set aside

CATCHWORDS:

Civil procedure – application to set aside default judgment – relevant considerations – long delay in making application – plaintiff bank – allegations of fraudulent conduct by bank manager – false details inserted in loan application unbeknown to defendant – whether defendant has a defence on the merits – National Credit Code – whether defendant has arguable case that loan agreement and mortgage constitute an unjust transaction – nature and extent of possible relief.

LEGISLATION:

National Credit Code, Sections 76, 77
Contracts Review Act 1980 (NSW)
Consumer Credit (Qld) Act 1994,
Consumer Credit Code (NSW) Section 70
National Consumer Credit Protection Act 1990

National Consumer Credit Protection (Transitional Consequential Provisions) Act 2009

CASES:

Tonto Home Loans Australia v Tavares (2011) 15 BPR 29, 699
Permanent Mortgages Pty Ltd v Cook & Cook [2006] NSWSC 1104
West v AGC (Advances) Ltd (1986) 5 NSWCE 610
Barker v G E Mortgage Solutions Ltd [2013] QCA 137
Perpetual Trustees Co Ltd v Khoshaba (2006) NSWCA 41

COUNSEL:

Mr D. Myrteza (Solicitor) – for the applicant

Ms M.J. Luchich – for the respondent

SOLICITORS:

Forbes Dowling – for the applicant

Minter Ellison Lawyers – for the respondent

Introduction

This is an application by the defendant to extend time for filing and serving an application to set aside a default judgment and affidavits in support of that application and an application to set aside the default judgment if time is extended.

The application and affidavits were to be filed by 4.30pm on 25 March 2015. They were not and it is conceded by the defendant that he is out of time and unless time is extended an enforcement warrant based on the default judgment may be enforced.

The plaintiff’s claim against the defendant was for recovery of possession of land as mortgagee and for $596,265.13 owing by the defendant to the plaintiff pursuant to a loan agreement dated about 5 May 2009 plus interest. The relevant Westpac account no. is 037151 286. The land is situated at 14 Surrey Court, Helensvale which is where the defendant lives.

The loan – the plaintiff’s case

Pursuant to the loan agreement the plaintiff advanced to the defendant $576,000 which was for the purchase of the property and lender’s mortgage insurance charge of $10,644.48 (The material is silent as to what happened in relation to the insurance. Was a claim made? What default does the insurance cover?). The contract of sale states the purchase price as…

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: [2015] QDC 76
Decision Date: 10 April 2015

CaseChat Overview and Summary

The case of Westpac Banking Corporation v Howard involved a dispute between the plaintiff, Westpac Banking Corporation, and the defendant, Mr Howard. The bank sought a default judgment against Mr Howard for the recovery of money allegedly owed under a loan agreement. Mr Howard applied to set aside the default judgment, claiming that he was unaware of false details inserted by a bank manager in his loan application, which constituted fraudulent conduct. The court was required to determine whether the defendant had a defence on the merits and whether the defendant had an arguable case that the loan agreement and mortgage constituted an unjust transaction under the National Credit Code.

The court considered the relevant factors for setting aside a default judgment, including the length of the delay in making the application and whether the defendant had a real prospect of successfully defending the action. The court noted that the delay in making the application was significant, but found that the defendant had an arguable case that the loan agreement and mortgage constituted an unjust transaction. The court found that the false details inserted by the bank manager were material and that the defendant had no knowledge of them. The court also noted that the defendant had provided evidence that he was unaware of the false details and that he had suffered financial hardship as a result of the loan agreement.

The court concluded that the defendant had a real prospect of successfully defending the action and that the delay in making the application did not prejudice the plaintiff. The court set aside the default judgment and extended the time for Mr Howard to file a defence. The court found that the nature and extent of the possible relief available to the defendant under the National Credit Code was significant and that it was appropriate to grant the relief sought. The court ordered that the default judgment be set aside and that Mr Howard be given time to file a defence to the proceedings.

Orders

Orders of the court

Time extended; judgment set aside

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Westpac Banking Corporation v Howard [2015] QDC 76
PARTIES:	WESTPAC BANKING CORPORATION (ABN 33 007 457 141) Plaintiff/Respondent v GLENN MATTHEW HOWARD Defendant/Applicant
FILE NO:	D 78/11
PROCEEDING:	Application to extend time for filing and serving an application to set aside a default judgment and affidavits in support of that application. Application to set aside default judgment.
ORIGINATING COURT:	District Court, Southport
DELIVERED ON:	10 April 2015
DELIVERED AT:	Southport
HEARING DATE:	27 March 2015
JUDGE:	Judge CF Wall QC
ORDERS:	Time extended; judgment set aside
CATCHWORDS:	Civil procedure – application to set aside default judgment – relevant considerations – long delay in making application – plaintiff bank – allegations of fraudulent conduct by bank manager – false details inserted in loan application unbeknown to defendant – whether defendant has a defence on the merits – National Credit Code – whether defendant has arguable case that loan agreement and mortgage constitute an unjust transaction – nature and extent of possible relief.
LEGISLATION:	National Credit Code, Sections 76, 77 Contracts Review Act 1980 (NSW) Consumer Credit (Qld) Act 1994, Consumer Credit Code (NSW) Section 70 National Consumer Credit Protection Act 1990 National Consumer Credit Protection (Transitional Consequential Provisions) Act 2009
CASES:	Tonto Home Loans Australia v Tavares (2011) 15 BPR 29, 699 Permanent Mortgages Pty Ltd v Cook & Cook [2006] NSWSC 1104 West v AGC (Advances) Ltd (1986) 5 NSWCE 610 Barker v G E Mortgage Solutions Ltd [2013] QCA 137 Perpetual Trustees Co Ltd v Khoshaba (2006) NSWCA 41
COUNSEL:	Mr D. Myrteza (Solicitor) – for the applicant Ms M.J. Luchich – for the respondent
SOLICITORS:	Forbes Dowling – for the applicant Minter Ellison Lawyers – for the respondent