WESTPAC BANKING CORPORATION -v- NINAN [2014] WASC 456

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASC 456
Case No:	CIV:2202/2014	Heard:	17 NOVEMBER 2014
Coram:	CHANEY J	Delivered:	5/12/14
No of pages:	15	Judgment Part:	1 of 1
Result:	Summary judgment granted
Category:	B
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Parties:	WESTPAC BANKING CORPORATION GEORGE NINAN MOLLY GEORGE
Catchwords:	Practice and procedure Application for summary judgment Whether there is an arguable defence What is the test to be used for valuation of land Turns on own facts
Legislation:	Contracts Review Act 1980 (NSW) National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (Cth) Rules of the Supreme Court 1971 (WA) Sale of Land Act 1970 (WA) Valuation of Land Act 1978 (WA)
Case References:	Bunbury Foods Pty Ltd v National Bank of Australasia Ltd [1984] HCA 10; (1984) 153 CLR 491 Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109 Spencer v Commonwealth of Australia [1907] HCA 82; (1907)5 CLR 418 Walker Corp Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 233 CLR 259 Wallingford v Mutual Society (1880) 5 App Cas 685 Westwind Air Charter Pty Ltd v Hawker De Havilland Ltd (1990) 3 WAR 71, 84 - 85; Goh v First Industries Corp [2002] WASCA 341

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : WESTPAC BANKING CORPORATION -v- NINAN [2014] WASC 456 CORAM : CHANEY J HEARD : 17 NOVEMBER 2014 DELIVERED : 5 DECEMBER 2014 FILE NO/S : CIV 2202 of 2014 BETWEEN : WESTPAC BANKING CORPORATION

Plaintiff

AND

GEORGE NINAN

First Defendant

MOLLY GEORGE

Second Defendant

Catchwords:

Practice and procedure - Application for summary judgment - Whether there is an arguable defence - What is the test to be used for valuation of land - Turns on own facts

Legislation:

Contracts Review Act 1980 (NSW)

National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (Cth)
Rules of the Supreme Court 1971 (WA)
Sale of Land Act 1970 (WA)
Valuation of Land Act 1978 (WA)

Result:

Summary judgment granted

Category: B

Representation:

Counsel:

Plaintiff : Mr J Lin

First Defendant : In person

Second Defendant : Not applicable

Solicitors:

Plaintiff : Jackson McDonald

First Defendant : In person

Second Defendant : In person

Cases referred to in judgment:

Bunbury Foods Pty Ltd v National Bank of Australasia Ltd [1984] HCA 10; (1984) 153 CLR 491
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109
Spencer v Commonwealth of Australia [1907] HCA 82; (1907)5 CLR 418
Walker Corp Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 233 CLR 259
Wallingford v Mutual Society (1880) 5 App Cas 685
Westwind Air Charter Pty Ltd v Hawker De Havilland Ltd (1990) 3 WAR 71, 84 - 85; Goh v First Industries Corp [2002] WASCA 341

1 CHANEY J: The plaintiff, Westpac Banking Corporation, seeks summary judgment pursuant to O 14 r 1 of the Rules of…

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: [2014] WASC 456
Decision Date: 5 DECEMBER 2014

CaseChat Overview and Summary

The Westpac Banking Corporation applied for summary judgment against Ninan, who had defaulted on a mortgage secured by land. The court was tasked with determining whether Ninan had an arguable defence to the claim and whether the test for valuing the land for the purposes of the judgment was correctly applied. The dispute centred on whether the valuation of the property was based on the correct principles and whether there was any arguable defence to the claim.

The primary legal issue was the applicability of an arguable defence to the claim for summary judgment, particularly in the context of the valuation of the property. The court also had to consider the correct approach to valuing the land in determining whether Westpac was entitled to judgment in its favour. The test for valuation was a key point of contention, with the court needing to decide if the valuation was conducted in accordance with the relevant legal principles.

The court found that there was no arguable defence to the claim and that the valuation of the land was correctly conducted. The court applied the appropriate test for valuation and found that the principles used were consistent with the applicable law. As a result, the court concluded that Westpac was entitled to summary judgment. The court's decision was based on the absence of any credible defence and the correct application of the valuation test.

The final order of the court was to grant Westpac Banking Corporation summary judgment against Ninan.

Orders

Orders of the court

Summary judgment granted

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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