Westpac Banking Corporation v Nolan - [2016] NSWSC 778

Supreme Court

New South Wales

Medium Neutral Citation: Westpac Banking Corporation v Nolan [2016] NSWSC 778
Hearing dates: 9 June 2016
Date of orders: 16 June 2016
Decision date: 16 June 2016
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:

(1) Ms Nolan’s notice of motion filed 19 April 2016 is dismissed.

(2) The defence and cross claim are struck out.

Judgment

The plaintiff is entitled to possession of the property.

The Court further orders that:
(3) Costs are reserved.
Catchwords:
REAL PROPERTY – possession of land – default judgment

PROCEDURE – civil – pleadings – application to strike out defence and cross claim – bankrupt defendant’s property vested in trustee – trustee elected not to pursue defence and cross claim – defence operates as impediment to entry of judgment for possession – cross claim causes prejudice, embarrassment or delay and is an abuse of process – defence and cross claim struck out
PROCEDURE – civil – parties – standing – bankrupt defendant sought orders declaring she had standing despite sequestration order made by Federal Circuit Court under the Bankruptcy Act 1966 (Cth) or leave to continue to be heard and/or appear in these proceedings – defendant has no standing to defend claims or prosecute cross claim – leave refused
Legislation Cited: Bankruptcy Act 1966 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Bendigo Bank Ltd v Demaria [2001] VSC 218
Cummings v Claremont Petroleum [1996] HCA 19; 185 CLR 124
Farrow Mortgage Services Pty Ltd v Winfield (1992) 2 Qd R 282
NAB v Darroch [2010] NSWSC 1202
NAB v Strik [2009] NSWSC 184
Re-Engine Pty Ltd (in liq) v Fergusson [2007] VSC 57
Category: Procedural and other rulings
Parties: Westpac Banking Corporation (Plaintiff)
Catherine Marie Nolan
Representation:
Counsel:
M Elliott (Plaintiff)
B Zipser (Ms Nolan)
Solicitors:
Henry Davis York (Plaintiff)
Brock Partners (Ms Nolan)

File Number(s): 2014/331336
Publication restriction: Nil

Judgment

HER HONOUR: By amended notice of motion filed 9 June 2016, the plaintiff seeks the following orders:

(a) An order striking out the amended defence to the amended statement of claim filed 23 November 2015 pursuant to rule 14.28(1)(b) and (c) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).

(b) An order striking out the statement of cross claim filed by Ms Nolan on 23 March 2015 pursuant to UCPR 14.28(1)(b) and (c).

(c) Judgment for the plaintiff against Ms Nolan for possession of the land comprised in certificate of title folio X/SPXXXXX being the land situate at and known as 3/XX XX, Oatley, New South Wales (“the property”) pursuant to UCPR 16.4.

The plaintiff is Westpac Banking Corporation (“Westpac”). The defendant is Catherine Marie Nolan (“Ms Nolan”). Westpac relied upon the affidavits of Naomi Greer dated 16 November 2014, Renee Ashton dated 9 December 2014, Karena Milios dated 11 May 2016, Guy Charles Howes dated 11 May 2016 and Montgomery Loughlin dated 3 June 2016.
By amended statement of claim (“ASC”), Westpac seeks an order for possession 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: [2016] NSWSC 778
Decision Date: 16 June 2016

CaseChat Overview and Summary

In the case of Westpac Banking Corporation v Nolan, the defendant, Ms Nolan, was in default of payment on a mortgage for certain land, resulting in the plaintiff, Westpac, applying for a default judgment of possession of the land. The dispute reached the Supreme Court of New South Wales. The defendant was declared bankrupt, and the property in question was vested in the trustee in bankruptcy. The trustee elected not to pursue the defence or cross claim, but the defence and cross claim remained on foot, causing impediments and prejudice.

The court was required to determine several legal issues, including whether the defence and cross claim could be struck out due to the trustee's decision not to pursue them, and whether the defendant had standing to defend the claims or prosecute the cross claim despite her bankruptcy. The court held that the defence and cross claim could be struck out as they constituted an abuse of process, causing prejudice, embarrassment, or delay. Furthermore, the court found that the defendant had no standing to defend the claims or prosecute the cross claim, as her sequestration order precluded her from doing so.

The court's reasoning was that the defence and cross claim had become redundant and an abuse of process, as the trustee in bankruptcy had elected not to pursue them. Additionally, the defendant's bankruptcy and the sequestration order rendered her incapable of having standing to defend the claims or prosecute the cross claim. Consequently, the court struck out the defence and cross claim, and refused the defendant leave to continue to be heard or appear in these proceedings.

The final orders of the court were that the defence and cross claim be struck out and that the defendant be refused leave to continue to be heard or appear in these proceedings.

Orders