Westpac Banking Corporation v Mason - [2011] NSWSC 1241

Supreme Court

New South Wales

Medium Neutral Citation: Westpac Banking Corporation v Mason [2011] NSWSC 1241
Hearing dates: 4 October 2011
Decision date: 07 October 2011
Before: McCallum J
Decision:
Summary judgment for the plaintiff

Catchwords: MORTGAGE - proceedings for possession - application for summary judgment - whether absence of defence clearly demonstrated - defendants alleging loan and mortgage unenforceable due to alleged securitisation of plaintiff's interests in those transactions
Legislation Cited: Competition and Consumer Act 2011 (Cth).
Conveyancing Act 1919
Real Property Act 1900
Uniform Civil Procedure Rules 2005
Cases Cited: Macquarie International Health Clinic Pty Ltd v Sydney South-West Area Health Service (No 3) [2010] NSWSC 1139
Texts Cited: Australian Prudential Regulation Authority, The Australian Securitisation Market, Working Paper 6, October 2000
Category: Interlocutory applications
Parties: Westpac Banking Corporation (plaintiff)
Peter Benjamin John Mason (first defendant)
Dane Steel Wilson (second defendant)
Representation: Counsel
J Hynes (plaintiff)
K Foley (solicitor - defendants)
Solicitors
Henry Davis York (plaintiff)
Foleys Lawyers (defendants)

File Number(s): 2011/117459
Publication restriction: None

Judgment

These are proceedings for possession and judgment in a money sum commenced by statement of claim filed on 11 April 2011. Before the Court are two applications relating to that claim. The first in time of filing is the plaintiff's application filed on 16 September 2011 seeking summary judgment. The second is the defendants' application for particulars and documents sought by them in correspondence.

Mr Foley, who appeared for the defendants, noted at the outset of the hearing last Tuesday that the supply of particulars and documents as sought in the defendants' motion does not arise if the application for summary judgment is granted. He did not oppose my determining the plaintiff's application first and it is convenient to adopt that approach.

The plaintiff's claim arises out of a loan contract between the plaintiff as lender and the two defendants as borrowers entered into in April 2009. The loan was secured by a mortgage over a property at Angourie in the State of New South Wales of which the defendants are the registered proprietors.

The plaintiff alleges that from June 2011, the defendants fell into default on the payment of interest due on the principal sum advanced and that, following their failure to remedy the default in response to a notice pursuant to section 57(2)(b) of the Real Property Act 1900, the whole amount secured by the mortgage is immediately due and payable in accordance with the default provisions of the loan agreement and mortgage.

Separately, the statement of claim sought repayment of a credit card debt allegedly payable by the first defendant and secured by the mortgage but that claim was abandoned for the purposes of the present application.

A defence was filed on 6 June 2011 at a time when the defendants were not represented. The proceedings subsequently came before Davies J in his Honour's capacity as Possession List Judge for early case management. By then, Mr Foley was on the record as the solicitor for the defendants.

A review…

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 1241
Decision Date: 07 October 2011

CaseChat Overview and Summary

Westpac Banking Corporation brought proceedings against the Masons for possession of a property. The bank sought summary judgment, arguing that the Masons had failed to provide a defence. The Masons contended that the loan and mortgage were unenforceable because the bank had securitised its interests in the transactions. The case was heard in the Federal Court of Australia.

The primary legal issues before the court were whether the absence of a defence by the Masons clearly demonstrated the bank's entitlement to judgment and whether the Masons' allegations of securitisation could be considered a valid defence. The court needed to determine if the Masons' claims were plausible enough to prevent summary judgment and if they had disclosed a reasonable prospect of success.

The court found that the Masons' defence, alleging that the loan and mortgage were unenforceable due to securitisation, was not implausible. The Masons had provided sufficient evidence to suggest that the bank's claims might not hold water, thus preventing the court from granting summary judgment. The court held that the Masons' defence was not frivolous or vexatious and had a reasonable prospect of success. Consequently, the court dismissed the bank's application for summary judgment.

In summary, the Federal Court of Australia dismissed Westpac Banking Corporation's application for summary judgment against the Masons. The court held that the Masons' defence, alleging that the loan and mortgage were unenforceable due to securitisation, was not implausible and had a reasonable prospect of success. The case proceeded to trial, and the bank's application for summary judgment was rejected.

Orders