Westpac Banking Corporation v Michaelides - [2012] QDC 57

[2012] QDC 57

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 351 of 2011

WESTPAC BANKING CORPORATION	Plaintiff
and
JOHN MICHAELIDES	Defendant

SOUTHPORT

..DATE 2/04/2012

ORDER

CATCHWORDS

Property Law Act 1974 s 84
Uniform Civil Procedure Rules r 292

"Summary judgement for possession of mortgaged property - no money claim - defendant fails to appear- his filed defence contended that both mortgage debt and mortgaged property belonged to a family trust (contrary to the documents), disputed the amount of mortgage arrears and contended that statutory notices of default had not been received - plaintiff entitled to rely on mortgage provisions for corresponding notices and for service of any notice or court document expressly effective "even if it never arrives"
HIS HONOUR: The court has made an order pursuant to Rule 292
that the plaintiff mortgagor recover, as against the defendant, possession of the land described as Lot 50 on Group Titles Plan of Resubdivision No. 106283 in the County of Ward, Parish of Mudgeeraba, being all of the land contained in title reference 50187036 and situated at 47/20 Tallebudgera Creek Road, Burleigh Heads (also known as 18 Tallebudgera Creek Road, Burleigh Heads) in the State of Queensland.

The court also orders that the defendant pay the plaintiff's
costs of and incidental to the proceeding (including this
application) to be assessed on the indemnity basis.
There has been initialled a draft order amended to read as
aforesaid.

The defendant did not appear today when called about 10.45
a.m. He has filed a notice of intention to defend on the 17th
of October 2011 and with it a defence, the heading of which,
unlike that of the notice of intention, has not been amended to
identify the District Court as the venue rather than the
Magistrates Court.

The plaintiff's claim is for possession of the mortgaged
premises which are registered as the defendant's property
without any indication whatever of a trust. The defence
asserts that the relevant loan, "was made to a trust account,
namely, Marjo Family Trust." Also that "the plaintiff did
not obtain a true valuation of the property, therefore, the
plaintiff erred regarding the amount of the loan dispersed
(sic) to the defendant." (I fail to see how lending the wrong amount would affect the cliaim in the circumstances. The next contention in the defence is
that "The loan dispersed (sic) was secured by property owned
by the Marjo Family Trust, therefore, the plaintiff has no
legal right to sue the defendant personally."

Mr Goodwin, representing the plaintiff, tells the court he
accepts that it should proceed on the basis that there is such
a thing as the Marjo Family Trust. It's not shown in the
evidence that the Marjo Family Trust had anything to do with
relevant matters. The loan agreement in evidence is with the
defendant by name, without any qualification, likewise, he has
mortgaged the subject property in his own name. There's
nothing whatever to suggest the bank was on notice of any
trust. If the…

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: [2012] QDC 57
Decision Date: 2/04/2012

CaseChat Overview and Summary

In the case of Westpac Banking Corporation v Michaelides, the plaintiff sought summary judgment for the possession of mortgaged property, without any accompanying monetary claim. The defendant did not appear in court, but filed a defence arguing that the mortgage debt and the mortgaged property were held by a family trust, which was contrary to the documents presented. The defence also disputed the amount of mortgage arrears and contended that the statutory notices of default had not been received. The court was required to determine whether the plaintiff was entitled to rely on the mortgage provisions, which provided for corresponding notices and the service of any notice or court document to be effective even if it never arrived.

The court found that the mortgage provisions allowed for the service of notices and documents to be effective even if they were never received, as per the terms of the mortgage. Given the defendant's failure to appear in court and the evidence provided by the plaintiff, the court concluded that the plaintiff was entitled to rely on these provisions. The court also noted that the defence did not dispute the validity of the mortgage or the existence of the mortgage debt, but rather focused on the service of notices and the amount of arrears. Therefore, the court found that the plaintiff was entitled to summary judgment for the possession of the mortgaged property.

In light of the court's findings, the plaintiff was granted summary judgment for the possession of the mortgaged property. The court ordered that the defendant vacate the property within 28 days of the judgment. The court also noted that the defendant's failure to appear in court and provide a valid defence resulted in the plaintiff being awarded its costs. The case serves as a reminder of the importance of timely and proper service of notices and documents in mortgage proceedings, and the consequences of failing to do so.

Orders