DISTRICT COURT OF QUEENSLAND
CITATION:
Westpac Banking Corporation v Upton [2015] QDC 278
PARTIES:
WESTPAC BANKING CORPORATION
(plaintiff)v
JAMES SYDNEY UPTON
(first defendant)&
SHAUN CHRISTOPHER MCKINNON
(second defendant by counterclaim)&
GRAHAM ROBERT KILLER
(third defendant by counterclaim)FILE NO/S:
D 1244/2015
DIVISION:
PROCEEDING:
Application for summary judgment
ORIGINATING COURT:
District Court of Brisbane
DELIVERED ON:
10 November 2015
DELIVERED AT:
Brisbane
HEARING DATE:
1 September 2015
JUDGE:
McGill SC DCJ
ORDER:
Judgment under rule 292 that the first defendant pay the plaintiff $617,440.17, in respect of the plaintiff’s claim other than the claim for enforcement costs and expenses. Judgment under r 293 that the first defendant’s counterclaim against the second and third defendants added by counterclaim be dismissed. Order that the first defendant’s amended counterclaim filed 5 June 2015 be struck out, but with liberty to re-plead in accordance with these reasons. The first defendant’s application is dismissed. Order the first defendant pay the costs of the plaintiff and second and third defendants added by counterclaim of both applications, to be assessed on the indemnity basis.
CATCHWORDS:
GUARANTEE AND INDEMNITY – Liability of guarantors – effect of winding up and dissolution of principal debtor – effect of variation of guaranteed obligation – construction of guarantee – whether enforcement unconscionable.
MORTGAGES – Remedies of mortgagee – appointment of receivers and managers – whether appointment valid – status of receivers and managers – liability for their actions in attempting to sell mortgaged land – whether guarantor can sue.
PRACTICE – Summary judgment for the plaintiff – whether need for trial of the action – whether the defendant has had a proper opportunity to contest a claim to recover various changes of lawyers and receivers, claimed as enforcement costs.
Land Title Act 1994 s 63.
Property Law Act 1974 s 85.
UCPR r 292.
Boz One Pty Ltd v McLellan [2015] VSCA 68 – cited.
Capital Finance Australia Ltd v Airstar Aviation Pty Ltd [2004] 1 Qd R 122 – cited.
Commonwealth Bank of Australia v Muirhead [1997] 1 Qd R 567 – considered.
Cuckmere Brick Co Ltd v Mutual Finance Ltd [1971] Ch 949 – not followed.
Downsview Nominees Ltd v First City Corporation Ltd [1993] AC 295 – cited.
Re Excel Finance Corporation (1993) 41 FCR 346 – cited.
Expo International Pty Ltd v Chant [1979] 2 NSWLR 820 – applied.
GE Capital Australia v Davis & Ors [2002] NSWSC 1146 – applied.
Higton Enterprises Pty Ltd v BFC Finance Ltd [1997] 1 Qd R 168 – considered.
Hindcastle Ltd v Barbara Attenborough Associates Ltd [1997] AC 70 - cited.
Leach v Commonwealth Bank of Australia [2014] QSC 295 – cited.
National Australia Bank Ltd v C & O Voukidis Pty Ltd [2015] NSWSC 185 – applied.
Sandtara Pty Ltd v Abigroup (1996) 42 NSWLR 491 – cited.
Standard Chartered Bank Ltd v Walker [1982] 1 WLR 1410 – not followed.
Star v Silvia (No. 1) [1994] 12 ACLC 600 – cited.
Upton v Tasmanian Perpetual Trustees Ltd
Keep reading for free
Create a free CaseChat account to read Westpac Banking Corporation v Upton and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2015] QDC 278
- Decision Date
CaseChat Overview and Summary
The court addressed several key legal issues, including the effect of the winding up and dissolution of the principal debtor on the guarantors' liability, and the enforceability of the guarantee in light of the principal debtor's dissolution. The court also considered the validity of the mortgagee's appointment of receivers and managers, and whether the guarantor could sue for the receivers' actions. Additionally, the court examined whether the plaintiff was entitled to summary judgment for the amount claimed, excluding enforcement costs, and whether the defendant had a proper opportunity to contest these costs.
The court found that the guarantors remained liable despite the principal debtor's dissolution, as the guarantee expressly stated that the guarantors' liability would not be affected by such events. The court also held that the mortgagee's appointment of receivers and managers was valid, and that the guarantor could not sue the receivers and managers for their actions. The court granted summary judgment to the plaintiff for the amount claimed, excluding enforcement costs, and dismissed the defendant's counterclaims and amended counterclaim. The court ordered the defendant to pay the plaintiff's and the second and third defendants' costs on an indemnity basis.
The final orders of the court were that the first defendant pay the plaintiff $617,440.17, excluding enforcement costs and expenses. The court dismissed the first defendant's counterclaim against the second and third defendants added by counterclaim, and struck out the first defendant's amended counterclaim filed on 5 June 2015, with liberty to re-plead in accordance with the court's reasons. The court also dismissed the first defendant's application and ordered the first defendant to pay the costs of the plaintiff and the second and third defendants added by counterclaim of both applications, to be assessed on the indemnity basis.
Orders
Orders of the court
Judgment under rule 292 that the first defendant pay the plaintiff $617,440.17, in respect of the plaintiff’s claim other than the claim for enforcement costs and expenses. Judgment under r 293 that the first defendant’s counterclaim against the second and third defendants added by counterclaim be dismissed. Order that the first defendant’s amended counterclaim filed 5 June 2015 be struck out, but with liberty to re-plead in accordance with these reasons. The first defendant’s application is dismissed. Order the first defendant pay the costs of the plaintiff and second and third defendants added by counterclaim of both applications, to be assessed on the indemnity basis.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.