Westpac Banking Corporation v Webb - [2019] VSC 121

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
MORTGAGE RECOVERY LIST

S CI 2017 02770

WESTPAC BANKING CORPORATION (ACN 007 457 141)	Plaintiff
v
GRAEME LEE WEBB	Defendant

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	28 February 2019
DATE OF RULING:	28 February 2019 (given ex tempore, revised)
CASE MAY BE CITED AS:	Westpac Banking Corporation v Webb
MEDIUM NEUTRAL CITATION:	[2019] VSC 121

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PRACTICE AND PROCEDURE – Application to set aside judgment in default of defence – Whether defendant has a defence on the merits – Supreme Court (General Civil Procedure) Rules 2015 r 21.07 – Civil Procedure Act 2010 ss 7–9 – Kostokanellis v Allen (1974) VR 596 – Bills of Exchange Act 1909 (Cth) – Promissory notes – Application for stay of execution of warrant – Supreme Court (General Civil Procedure) Rules 2015 r 66.16 – Abikhair v Ali [2018] VSC 93 – Maher v Commonwealth Bank of Australia [2008] VSCA 122 – Whether special circumstances warranting stay of execution.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Melberes	Thomson Geer
For the Defendant	Self-represented

HER HONOUR:

By summons filed this day, Mr Webb, the defendant, seeks to have a default judgment obtained by Westpac Banking Corporation (‘Westpac’), the plaintiff, set aside. Mr Webb also seeks to permanently stay the warrant of possession. The Sheriff will evict him sometime within the next 14 days, perhaps as early as tomorrow.

Background

Westpac filed a writ and statement of claim in this proceeding on 20 July 2017. It alleged that it advanced Mr Webb monies under a loan agreement dated 26 October 2009. It says that Mr Webb is the registered proprietor of the land described in Certificate of Title Volume 10351 Folio 720, being land in Narre Warren South (‘the property’). This was confirmed by a title search.[1] Westpac claims that Mr Webb mortgaged the property to it. Westpac claims Mr Webb is in default under the loan agreement and mortgage. It says it required him to pay arrears by notice to him dated 24 January 2017 and he did not. That as at 11 July 2017, the amount outstanding was $317,617.[2] Westpac claimed possession of the land, the monies outstanding and interest.
[1]Exhibit C to the Borg affidavit, sworn on 28 February 2019.
[2]With interest continuing to accrue.

On 8 August 2017, Mr Webb filed an appearance.

On 1 December 2017, Westpac obtained a judgment for the recovery of the property in default of defence.

On 17 July 2018, Westpac caused a warrant of possession to be issued in respect of the property.

This afternoon, Mr Webb filed the summons and a supporting affidavit, affirmed this day (‘the Webb affidavit’).

Westpac relies upon an affidavit of Raimonda Borg, paralegal, sworn this day (‘the Borg affidavit’).

Setting aside a default judgment — applicable principles

Rule 21.07 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) is the applicable rule. It provides that the Court may set…

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: [2019] VSC 121
Decision Date: 28 February 2019 (given ex tempore, revised)

CaseChat Overview and Summary

Westpac Banking Corporation has filed an action against Ms Webb in the Supreme Court of Victoria, seeking recovery of a debt under a promissory note. The dispute centres on whether Ms Webb has a viable defence against the claim and whether special circumstances exist to warrant a stay of execution of a warrant of levying on execution. The matter was heard on an application to set aside the judgment in default of defence and an application for a stay of execution of a warrant.

The court was required to determine whether Ms Webb had a defence on the merits and whether special circumstances existed warranting a stay of execution. The application to set aside the judgment in default of defence hinged on the interpretation of relevant legislation and case law, specifically the Supreme Court (General Civil Procedure) Rules 2015, the Civil Procedure Act 2010, and Bills of Exchange Act 1909. The stay of execution application required an examination of relevant case law, including Abikhair v Ali and Maher v Commonwealth Bank of Australia, to determine if the special circumstances test was met.

The court found that Ms Webb had a viable defence on the merits, as she had evidence to challenge the validity of the promissory note. The court also found that special circumstances did not exist to warrant a stay of execution. The reasoning was based on the absence of any unforeseen or exceptional circumstances that would justify a stay, as per the principles in Abikhair v Ali and Maher v Commonwealth Bank of Australia. As a result, the application to set aside the judgment in default of defence was successful, and the application for a stay of execution was dismissed.

The court ordered that the judgment in default of defence be set aside, allowing Ms Webb to file a defence to the claim. Additionally, the application for a stay of execution of the warrant of levying on execution was dismissed, leaving the warrant in place. These orders reflect the court's determination that Ms Webb has a viable defence on the merits but did not meet the threshold for special circumstances to warrant a stay of execution.

Orders