Westpac Banking Corporation v Nirest Nominees Pty Ltd (under external administration)

The case involved Westpac Banking Corporation and Nirest Nominees Pty Ltd, the latter being in external administration. The dispute centred on whether the bank could proceed with its claim for possession of property under a mortgage after the appointment of receivers and managers, without obtaining leave or consent prior to the commencement of the proceedings. The consent of the receivers and managers was later provided, and the bank sought leave to commence the proceedings nunc pro tunc. The matter was heard in the Federal Court of Australia.

The primary legal issue before the court was whether the bank's failure to obtain leave or consent before the commencement of proceedings precluded it from proceeding with the claim for possession, despite the receivers and managers later providing their consent. The court needed to determine whether the bank could still rely on the mortgage to claim possession of the property and if the subsequent consent of the receivers and managers could cure the procedural defect.

The court held that the bank's failure to obtain leave or consent prior to the commencement of the proceedings did not automatically preclude it from proceeding with the claim for possession. The court emphasised that the appointment of receivers and managers does not necessarily mean that all proceedings by the mortgagee are stayed, and that the consent of the receivers and managers could potentially cure the procedural defect. The court granted the bank's application for leave to commence the proceedings nunc pro tunc, finding that the subsequent consent of the receivers and managers could validate the bank's claim for possession under the mortgage.

The court's decision underscores the importance of obtaining leave or consent before commencing proceedings in certain situations, but also recognises that procedural defects can be cured with the consent of the relevant parties. The court's grant of leave to commence the proceedings nunc pro tunc ensures that the bank can proceed with its claim for possession of the property, despite the initial procedural oversight.