Westpac Banking Corporation v Keary

[2021] NSWSC 1313

Supreme Court

New South Wales

Medium Neutral Citation:

Westpac Banking Corporation v Keary [2021] NSWSC 1313

Hearing dates:

11 October 2021

Date of orders:

11 October 2021

Decision date:

11 October 2021

Jurisdiction:

Common Law

Before:

Dhanji J

Decision:

Hearing dates vacated.

Costs on the motion reserved.

Catchwords:

PRACTICE AND PROCEDURE – notice of motion - application to vacate hearing date – not opposed – application granted – costs reserved

Category:

Procedural rulings

Parties:

Westpac Banking Corporation (Plaintiff)
Rachel Ann Keary (Defendant)

Representation:

Counsel:
C Hamilton-Jewell (Plaintiff)
B Anderson (Defendant)

Solicitors:
MinterEllison (Plaintiff)
ITC Law (Defendant)

File Number(s):

2019/159765

Publication restriction:

Nil

EX TEMPORE Judgment (revised)

1. HIS HONOUR: This is a notice of motion on behalf of Rachel Ann Keary who is the defendant in proceedings brought by the Westpac Banking Corporation seeking possession of the home in which she resides with her family. The matter is listed for hearing before me tomorrow and the following day. The application was notified to my chambers on Friday of last week. The plaintiff was properly copied into the communication and indeed the communication indicated that the plaintiff did not oppose the hearing being vacated. The plaintiff has maintained that position this morning.

2. In short there are two issues. One, there are related proceeds of crime proceedings. I say related in a loose sense. They are related in that they impact on funds that might otherwise be available with respect to the property and which, if applied, may have the result of resolving these proceedings.

3. It had been proposed that this hearing would take place after a motion in the proceeds matter seeking release of funds from restraint in order to apply them to the loan at the centre of this matter. It seems, however, that with the effluxion of time it may no longer be the case that the funds, even if released, would be sufficient to resolve this matter. It seems there is no longer a particular need for the proceeds matter to precede this matter.

4. The other issue and the one that appears to be of greater significance relates to the condition of the defendant, the applicant on this motion. Relied on in the application is an affidavit of Mr James Robert Fraser Clancy of 8 October 2021. In that affidavit he refers to recent contact with Ms Keary and he annexes a report from Dr Henderson dated 14 November 2018.

5. That report refers to a long and difficult psychiatric history. Certainly, at the time of that report it did not appear that Ms Keary was in a fit medical condition to be cross-examined and perhaps was not in a sufficiently well condition to provide instructions. The conditions referred to in that report, I accept, are not conditions of a transient nature.

6. Mr Clancy deposes that he was advised on 1 October 2021 that the defendant would be required for cross-examination at the hearing. He conveyed that information to her. He does not say when he conveyed that information, but presumably relatively soon after 1 October.

7. He was told by the defendant that the COVID lockdown, of which we are all aware, has been extremely stressful to her, that she has rarely left the house over that time, and that she has had the additional burden of home schooling her daughter. She reported to Mr Clancy that this has increased her anxiety, on her existing stresses. She indicated she is not comfortable discussing the matter over the phone and would need to meet face-to-face to provide instructions.

8. There is something of a difficulty in that whilst I can accept that Ms Keary’s problems were particularly acute in 2018, I have no evidence as to what her situation was immediately prior to lockdown. It is not possible do ascertain what a decline in her condition, from that immediately prior to lockdown, would result in with respect to her condition. And whilst I have indicated the condition is not transient, it is perhaps reasonable to infer that it would have been more acute around the time of events precipitating this action. In particular in that regard, I note that the defendant is married to Mr Jason Onley. Mr Jason Onley was arrested in relation to the Plutus Payroll fraud. Related to the criminal proceedings in that matter, including charges against Mr Onley, are proceeds of crime proceedings and as I have already indicated, there is an interplay between those proceedings and the present proceedings. In those circumstances, one can well imagine that, whilst Ms Keary had a pre-existing condition, it would have been severely exacerbated as a result of the events surrounding the arrest of her husband and the proceeds of crime proceedings.

9. It is, in those circumstances, somewhat unsatisfactory that a motion is received on a Friday before a Tuesday hearing. Having said that, the court is in a difficult position. I accept, and there has been no challenge, to the evidence of Mr Clancy, which in so far as it goes, as I said, is to the effect that present circumstances surrounding the COVID lockdown have increased her anxiety.

10. Secondly, she has not been able to access health services in the manner in which she would ordinarily be able to access such services.

11. Thirdly, whilst I canvassed the option to have the hearing remain tomorrow and assess her situation then, given the severity of her pre-existing conditions and given what is in Mr Clancy’s affidavit, it seems to me that there would be significant risk in taking such a step. That risk is that, in the absence of this motion being granted and the hearing vacated, Ms Keary’s condition will deteriorate between now and tomorrow. In other words, whilst from the Court’s perspective, it might be desirable to actually wait and to obtain some more solid information with respect to the defendant’s condition, that may simply have the impact of worsening her condition. In other words, the Court is in something of an invidious position. But on the information presently available to me, it would seem that either the defendant is not in a sufficiently well condition for these proceedings to continue, or that even if she is, as of today in such a condition, the Court, in refusing this motion, would run the risk of causing her real harm. In those circumstances, regrettably it is my view, particularly having regard to the lack of opposition from the plaintiff, that the motion should be granted.

Orders

12. I vacate the hearing of this matter currently listed on 12 and 13 October 2021. Costs on the motion are reserved.

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Decision last updated: 14 October 2021