Westpac Banking Corporation v Tesoro

The Westpac Banking Corporation sought summary judgment against Tesoro, who was in default on a mortgage. The matter was heard in the Supreme Court of Queensland. The key legal issues were whether the default notice provided by Westpac complied with the requirements of s.88(3) of the National Credit Code, and whether the failure to comply with s.88(3) constituted a defect that could be regularised by an Associate Judge under s.88(5) of the same Code. The court also had to consider whether the failure to comply with s.72(3) of the National Credit Code rendered the mortgage unenforceable, and what evidence was required for an application to change a credit contract under s.74(1) of the Code.

The court found that the default notice did not strictly comply with s.88(3) of the National Credit Code, but determined that the notice was substantially compliant under s.208(1) of the Code. The court held that the failure to comply with s.88(3) did not constitute an irregularity that would prevent the enforcement of the mortgage. The court further found that an Associate Judge could not regularise the defect under s.88(5) of the Code, but that the failure to comply with s.72(3) of the Code did not render the mortgage unenforceable. The court also noted that the evidence required for an application to change a credit contract under s.74(1) of the Code was not relevant in this case.

The Supreme Court of Queensland granted Westpac's application for summary judgment and ordered Tesoro to pay the outstanding debt and to surrender possession of the mortgaged property. The court held that the failure to comply with s.88(3) of the National Credit Code did not prevent the enforcement of the mortgage, and that the other provisions of the Code did not apply in this case. The court further found that the evidence required for an application to change a credit contract under s.74(1) of the Code was not relevant, as the matter was one of enforcement of the existing mortgage.