Westpac Banking Corporation v Upton (No.2) - [2016] QDC 59

DISTRICT COURT OF QUEENSLAND

CITATION:

Westpac Banking Corporation v Upton (No.2) [2016] QDC 59

PARTIES:

WESTPAC BANK CORPORATION

ABN 33 007 457 141

(applicant)

v

JAMES SYDNEY UPTON

(respondent)

FILE NO/S:

1244/2015

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

24 March 2016

DELIVERED AT:

Brisbane

HEARING DATE:

11 March 2016

JUDGE:

Farr SC DCJ

ORDER:

The Re-pleaded Counterclaim filed 23 February 2016 is struck out.1.

The respondent is ordered to pay the applicant’s costs of and incidental to this application to be determined on the indemnity basis.2.

CATCHWORDS:

PRACTICE AND PROCEDURE – PROCEDURE UNDER THE UNIFORM CIVIL PROCEDURE RULES – application to strike out counterclaim on the basis of a fundamental defect – where counterclaims previously filed by the respondent were struck out – where the respondent brought a counterclaim against the applicant alleging losses caused by breaches of s 85 of the Property Law Act 1974 – where applicant seeks an order that the respondent not be granted leave to re-plead – where the respondent was self-represented.

Uniform Civil Procedure Rules 1999, r 149, r 155, r 166, r 165, r 171
Property Law Act 1974, s 85

Alexander v Perpetual Trustees WA Ltd (2004) 216 CLR 109
Buckeridge v Mercantile Credits Limited (1981) 147 CLR 654
O’Day v Commercial Bank of Australia Ltd (1933) 50 CLR 200
Westpac Banking Corporation v Upton [2015] QDC 278

COUNSEL:

G D Sheahan for the applicant.

The respondent was self-represented.

SOLICITORS:

Henry Davis York solicitors for applicant.

Application

The applicant (plaintiff) applies to strike out the Re-pleaded Counterclaim filed on 23 February 2016 (“counterclaim”) by the respondent (defendant). This is the fourth version of a counterclaim filed by the respondent against the applicant. Each of the previous versions have been struck out by orders of McGill SC DCJ and Koppenol DCJ.

Background

The respondent is a guarantor of certain liabilities owed to the applicant by Cambridge Pacific Investments Pty Ltd as trustee of the Cambridge Pacific Investment trust (“CPI/The Trust”). Those facilities were and are secured by, amongst other things, a registered mortgage granted by the borrower over an industrial property which was owned by CPI/the trust but by change of trustee affected by the respondent is now owned by CPAC Residential Pty Ltd as trustee (“the property”).[1]
[1]See reasons for judgment of McGill SC DCJ in Westpac Banking Corporation v Upton [2015] QDC 278 at para [11].

Second and third defendants are sought to be added by counterclaim and are the receivers and managers appointed by the applicant to the property on 21 January 2014.[2] As at today’s date the property remains unsold.[3]
[2]See reasons for judgment of McGill SC DCJ in Westpac Banking Corporation v Upton [2015] QDC 278 at para [14].
[3]Affidavit of Benjamin Stuart Shaw filed 11.03.16.

The applicant obtained summary judgment for the sum of $617,440.17 as against the respondent by order of McGill SC DCJ on 10 November 2015. His Honour also struck out the respondents then…

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] QDC 59
Decision Date: 24 March 2016

CaseChat Overview and Summary

Westpac Banking Corporation (Applicant) sought to strike out a counterclaim by Upton (Respondent) on the basis that it was a fundamental defect. The matter was before the Supreme Court of Queensland. The dispute arose from a previous proceeding where the Respondent’s counterclaims had been struck out. In the current proceeding, the Respondent filed a counterclaim alleging losses caused by breaches of Section 85 of the Property Law Act 1974. The Applicant argued that the counterclaim should be struck out as it was an abuse of process, as the Respondent had been self-represented and had already had an opportunity to plead the counterclaim in the previous proceeding.

The court was required to determine whether the counterclaim was an abuse of process and whether it should be struck out. The court noted that the Respondent had been self-represented and had filed a previous counterclaim that was struck out. The court found that the Respondent had not demonstrated that the counterclaim was not an abuse of process. The court also found that the Respondent had not demonstrated that there were any special circumstances that warranted the counterclaim being allowed. The court found that the counterclaim was an abuse of process and should be struck out.

The court struck out the counterclaim and ordered the Respondent to pay the Applicant’s costs of and incidental to the application on the indemnity basis. The court found that the Respondent’s conduct in filing the counterclaim was an abuse of process and that there were no special circumstances that warranted the counterclaim being allowed. The court noted that the Respondent had been self-represented and had already had an opportunity to plead the counterclaim in the previous proceeding. The court found that the Respondent’s conduct in filing the counterclaim was an abuse of process and that there were no special circumstances that warranted the counterclaim being allowed. The court ordered that the counterclaim be struck out and that the Respondent pay the Applicant’s costs on the indemnity basis.

Orders

Orders of the court

The Re-pleaded Counterclaim filed 23 February 2016 is struck out.1.

The respondent is ordered to pay the applicant’s costs of and incidental to this application to be determined on the indemnity basis.2.

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.

CITATION:	Westpac Banking Corporation v Upton (No.2) [2016] QDC 59
PARTIES:	WESTPAC BANK CORPORATION ABN 33 007 457 141 (applicant) v JAMES SYDNEY UPTON (respondent)
FILE NO/S:	1244/2015
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	24 March 2016
DELIVERED AT:	Brisbane
HEARING DATE:	11 March 2016
JUDGE:	Farr SC DCJ
ORDER:	The Re-pleaded Counterclaim filed 23 February 2016 is struck out.1. The respondent is ordered to pay the applicant’s costs of and incidental to this application to be determined on the indemnity basis.2.
CATCHWORDS:	PRACTICE AND PROCEDURE – PROCEDURE UNDER THE UNIFORM CIVIL PROCEDURE RULES – application to strike out counterclaim on the basis of a fundamental defect – where counterclaims previously filed by the respondent were struck out – where the respondent brought a counterclaim against the applicant alleging losses caused by breaches of s 85 of the Property Law Act 1974 – where applicant seeks an order that the respondent not be granted leave to re-plead – where the respondent was self-represented. Uniform Civil Procedure Rules 1999, r 149, r 155, r 166, r 165, r 171 Property Law Act 1974, s 85 Alexander v Perpetual Trustees WA Ltd (2004) 216 CLR 109 Buckeridge v Mercantile Credits Limited (1981) 147 CLR 654 O’Day v Commercial Bank of Australia Ltd (1933) 50 CLR 200 Westpac Banking Corporation v Upton [2015] QDC 278
COUNSEL:	G D Sheahan for the applicant. The respondent was self-represented.
SOLICITORS:	Henry Davis York solicitors for applicant.