Westpac Banking Corporation v Jarrett - [2000] FCA 1675

FEDERAL COURT OF AUSTRALIA
Westpac Banking Corporation v Jarrett
[2000] FCA 1675
Contracts Review Act 1980 (NSW)
Trade Practices Act 1974 (Cth)
Endormer Pty Ltd v Australian Guarantee Corporation Ltd [2000] FCA 1669 followed
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 followed
Schanka v Employment National (Administration) Pty Ltd (2000) 97 FCR 187 cited
WESTPAC BANKING CORPORATION v GLENN ROBERT JARRETT and DEBORAH ALLISON JARRETT
NG 256 OF 1996
GYLES J
SYDNEY
21 NOVEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 256 OF 1996

BETWEEN:

WESTPAC BANKING CORPORATION
APPLICANT

AND:
AND:

GLENN ROBERT JARRETT
FIRST RESPONDENT

DEBORAH ALLISON JARRETT
SECOND RESPONDENT

GLENN ROBERT JARRETT
FIRST CROSS CLAIMANT

DEBORAH ALLISON JARRETT
SECOND CROSS CLAIMANT

WESTPAC BANKING CORPORATION
CROSS DEFENDANT

JUDGE:

GYLES J

DATE OF ORDER:

21 NOVEMBER 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
The proceedings be adjourned to a date to be fixed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 256 OF 1996

BETWEEN:

WESTPAC BANKING CORPORATION
APPLICANT

AND:
AND:

GLENN ROBERT JARRETT
FIRST RESPONDENT

DEBORAH ALLISON JARRETT
SECOND RESPONDENT

GLENN ROBERT JARRETT
FIRST CROSS CLAIMANT

DEBORAH ALLISON JARRETT
SECOND CROSS CLAIMANT

WESTPAC BANKING CORPORATION
CROSS DEFENDANT

JUDGE:

GYLES J

DATE:

21 NOVEMBER 2000

PLACE:

SYDNEY

REASONS FOR JUDGMENT

The applicant, Westpac Banking Corporation (“Westpac”) is the registered first mortgagee of the property known as 8 Bataan Place, Kings Park (“the Jarrett property”), owned by the first and second respondents and cross-claimants, Glenn Robert Jarrett and Deborah Allison Jarrett. Westpac claims that the Jarretts are in default in their obligation to repay monies due under the mortgage, and makes application for possession of the mortgaged property and for payment of the outstanding balance of monies due plus interest. It was made clear in final submissions that it is accepted that there is no defence, as such, to the claims for monies due. The Jarretts, however, cross-claim for relief of various kinds pursuant to the Contracts Review Act 1980 (NSW), the Trade Practices Act 1974 (Cth) and the general law. The manner in which the cross-claim is pleaded involved some issues which are linked with issues arising in the related proceedings between Glenn Robert Jarrett and others and Australian Guarantee Corporation Limited and Peter James Hedge (No. NG 3244 of 1995) (Endormer Pty Ltd v Australian Guarantee Corporation Ltd [2000] FCA 1669 - “the Endormer proceedings”) so that the matters were heard, to an extent, together, and the decision in the Endormer proceedings will be delivered immediately prior to this decision. The same counsel represented the respondents here as represented the applicants in the Endormer proceedings. This judgment is framed upon the basis that the judgment in the Endormer proceedings is to be read with it. This relieves me of the necessity of setting out in this judgment the history of the commercial dealings between Australian Guarantee…

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: [2000] FCA 1675
Decision Date: 21 NOVEMBER 2000

CaseChat Overview and Summary

Westpac Banking Corporation has applied for possession of the mortgaged property at 8 Bataan Place, Kings Park, owned by Glenn Robert Jarrett and Deborah Allison Jarrett, and for payment of the outstanding balance of monies due plus interest. The applicants argue that the respondents are in default in their obligation to repay the mortgage, and there is no defence to the claim. The respondents cross-claim for relief under the Contracts Review Act 1980 (NSW), the Trade Practices Act 1974 (Cth) and the general law. The case was heard together with related proceedings between Glenn Robert Jarrett and others and Australian Guarantee Corporation Limited and Peter James Hedge. The court must decide whether the mortgage is valid, and if the respondents have any defence to the claim for possession and payment. The court also must determine if the respondents' cross-claim for relief is valid.

The court found that the respondents' claim of undue influence was not established, and there was no evidence of any relevant loss or damage. The court did not need to decide if the bank was involved in any undue influence by Mr Jarrett. The court rejected each head of the cross-claim, which effectively removed any defence to the proceedings. An order will be made for possession and for recovery of the amount claimed, together with an appropriate amount for interest. The court will stand the matter over for a short period to enable counsel for Westpac to bring in short minutes of order. At that time, the court will hear any argument as to costs and any other consequential matter.

The court rejected the respondents' cross-claim and found that there was no defence to the claim for possession and payment. The court found that the respondents' claim of undue influence was not established, and there was no evidence of any relevant loss or damage. The court did not need to decide if the bank was involved in any undue influence by Mr Jarrett. The court made an order for possession and for recovery of the amount claimed, together with an appropriate amount for interest. The proceedings were adjourned to a date to be fixed, to enable counsel for Westpac to bring in short minutes of order. At that time, the court will hear any argument as to costs and any other consequential matter.

Orders

Orders of the court

The proceedings be adjourned to a date to be fixed.

Background

Background to the litigation

The applicant, Westpac Banking Corporation (“Westpac”) is the registered first mortgagee of the property known as 8 Bataan Place, Kings Park (“the Jarrett property”), owned by the first and second respondents and cross-claimants, Glenn Robert Jarrett and Deborah Allison Jarrett. Westpac claims that the Jarretts are in default in their obligation to repay monies due under the mortgage, and makes application for possession of the mortgaged property and for payment of the outstanding balance of monies due plus interest. It was made clear in final submissions that it is accepted that there is no defence, as such, to the claims for monies due. The Jarretts, however, cross-claim for relief of various kinds pursuant to the Contracts Review Act 1980 (NSW), the Trade Practices Act 1974 (Cth) and the general law. The manner in which the cross-claim is pleaded involved some issues which are linked with issues arising in the related proceedings between Glenn Robert Jarrett and others and Australian Guarantee Corporation Limited and Peter James Hedge (No. NG 3244 of 1995) (Endormer Pty Ltd v Australian Guarantee Corporation Ltd [2000] FCA 1669 - “the Endormer proceedings”) so that the matters were heard, to an extent, together, and the decision in the Endormer proceedings will be delivered immediately prior to this decision. The same counsel represented the respondents here as represented the applicants in the Endormer proceedings. This judgment is framed upon the basis that the judgment in the Endormer proceedings is to be read with it. This relieves me of the necessity of setting out in this judgment the history of the commercial dealings between Australian Guarantee Corporation (“AGC”), on the one hand, and Endormer Pty Limited (In Liquidation) (“Endormer”) and those associated with it, on the other hand, which constitute the mosaic of facts of which the particular mortgage transaction in issue here forms a part.Short facts In early 1993 the mortgagee of the Jarrett property was Advance Bank Limited, with the amount outstanding in the vicinity of $150,000. Monies had been advanced by AGC to Endormer in September 1992 on condition that, inter alia, the Jarretts would provide security by way of a mortgage over the Jarrett property to AGC. Registration of that mortgage had not taken place by early 1993. There is no evidence, however, that any action or inaction by Advance Bank Limited was standing in the way. By late February 1993, Mr Peter Rodd became responsible (on the credit side of AGC) for the Endormer account, and met Messrs Jarrett and Paterson, the principals of Endormer, for the first time. He had various discussions, both in person and by telephone, with one or both of them, between then and late April, in which Mr Rodd expressed the view that Endormer would be better able to manage its business if it had a general business overdraft as well as the AGC floorplan facility. There is dispute about the precise content of these conversations, but it is clear enough that Mr Rodd indicated that the administration of the AGC arrangements would be more sympathetic if the overdraft was arranged.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GYLES J

This claim was not elucidated during submissions. The evidence from Mr and Mrs Jarrett falls far short of establishing a claim of undue influence. This makes it unnecessary to decide whether the facts pleaded against the Bank would or could involve it in any undue influence by Mr Jarrett. In the event, whatever may have been said about the guarantee, I cannot see any basis for attacking the mortgage on this footing. There is also no relevant loss or damage in relation to which relief should be granted.Conclusion I have rejected each head of cross-claim and this effectively removes any defence to the proceedings. An order will be made for possession and for recovery of the amount claimed, together with an appropriate amount for interest. I will stand the matter over for a short period to enable counsel for Westpac to bring in short minutes of order. At that time I will hear any argument as to costs and any other consequential matter, including any issue that I have overlooked. The Jarretts can consider their position in relation to the Contracts Review Act in the meantime.

Ratio Decidendi

Legal Principle Established

Established by: GYLES J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 256 OF 1996

BETWEEN:	WESTPAC BANKING CORPORATION APPLICANT
AND: AND:	GLENN ROBERT JARRETT FIRST RESPONDENT DEBORAH ALLISON JARRETT SECOND RESPONDENT GLENN ROBERT JARRETT FIRST CROSS CLAIMANT DEBORAH ALLISON JARRETT SECOND CROSS CLAIMANT WESTPAC BANKING CORPORATION CROSS DEFENDANT
JUDGE:	GYLES J
DATE OF ORDER:	21 NOVEMBER 2000
WHERE MADE:	SYDNEY

JUDGE:	GYLES J
DATE:	21 NOVEMBER 2000
PLACE:	SYDNEY