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Westpac v Hines

Westpac v Hines

Case [2020] VSC 715 29 October 2020

Standing

Summary Judgment

Bankruptcy

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

MORTGAGE RECOVERY LIST

S CI 2017 04631

WESTPAC BANKING CORPORATION (ABN 33 007 457 141)	Plaintiff
v
STEVEN RICHARD HINES	First Defendant
and
WATTLETREE MANAGEMENT PTY LTD (ACN 117 269 342)	Second Defendant

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JUDICIAL REGISTRAR:	Matthews JR
WHERE HELD:	Melbourne
DATE OF HEARING:	23 September 2020
DATE OF RULING:	29 October 2020
CASE MAY BE CITED AS:	Westpac v Hines
MEDIUM NEUTRAL CITATION:	[2020] VSC 715

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PRACTICE AND PROCEDURE – Application by plaintiff for summary judgment against first defendant – Civil Procedure Act 2010 (Vic) ss 61 and 63 – Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 – First defendant an undischarged bankrupt – No standing to defend proceeding – Bankruptcy Act 1966 (Cth), s 58(1)(a) – Westpac v Webb [2019] VSC 180 – Application for summary judgment for possession of mortgaged property granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B Carew	HWL Ebsworth Lawyers
The First Defendant, in person

JUDICIAL REGISTRAR:

The Plaintiff’s application

By summons filed 28 February 2019, Westpac Banking Corporation (‘the Plaintiff’) sought summary judgment against Stephen Richard Hines (‘the First Defendant’) and Wattletree Management Pty Ltd (‘the Second Defendant’) (together ‘the Defendants’) pursuant to Rule 22.08(b) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘the Rules’) and section 63 of the Civil Procedure Act 2010 (Vic) (‘CPA’).[1]
[1]By order made on the Court’s own motion, the summons was referred to me, pursuant to r 84.04 of the Rules, for hearing and determination.

Specifically, the Plaintiff now seeks an order that the Plaintiff recover from the First Defendant possession of the land at Unit 801, 3 Chapel Mews, South Yarra, more particularly described as Lot 168 on Plan of Subdivision 422665R, contained in Certificate of Title Volume 10620 Folio 778 (‘the Property’).[2]
[2]The Plaintiff’s summons sought the further order that the Second Defendant pay the Plaintiff the sum of $7,734,898.00. As is outlined below, the Second Defendant was deregistered on 11 April 2020, so this relief was not sought at the return of the summons.

Background
Procedural History

On 16 November 2017, the Plaintiff filed and served a statement of claim seeking possession of the Property and repayment of sums owed under guarantees given by the Defendants as security for loans given by the Plaintiff to Flush Fitness Pty Ltd (‘Flush’).

On 12 February 2018 the Defendants filed a joint defence (‘Defence’).

The First Defendant entered bankruptcy on 21 November 2018.[3] On 1 February 2019, I gave leave to the First Defendant to appear at the directions hearing on that day and made timetabling orders in respect of the Plaintiff’s (then foreshadowed) application for summary judgment. I indicated at that hearing that the issue of the First Defendant’s standing in respect of any such application would need to be addressed.[4]
[3]Affidavit of Rita Dichiera…

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.

Continue reading Westpac v Hines

Details

AGLC: Westpac v Hines [2020] VSC 715
Case: [2020] VSC 715
Decision Date: 29 October 2020

CaseChat Overview and Summary

The case of Westpac v Hines was heard in the Supreme Court of Victoria, where Westpac Bank sought summary judgment against the first defendant, who was an undischarged bankrupt. The primary issue before the court was whether the first defendant, being an undischarged bankrupt, had the standing to defend the proceedings, given that s 58(1)(a) of the Bankruptcy Act 1966 (Cth) restricts such individuals from taking legal action without the leave of the court or their trustee in bankruptcy. Westpac argued that the first defendant, Hines, had no standing to defend the proceeding due to his bankruptcy status and sought summary judgment for possession of the mortgaged property.

The court was required to determine whether Hines had standing to defend the proceeding under the circumstances and, if not, whether Westpac was entitled to the relief sought through summary judgment. The court examined the relevant statutory provisions and case law, including Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 and Westpac v Webb [2019] VSC 180, to ascertain the appropriate legal principles. The court held that, as Hines was an undischarged bankrupt, he lacked the necessary standing to defend the proceeding. This finding aligned with the statutory restrictions on the legal capacity of bankrupt individuals, as outlined in s 58(1)(a) of the Bankruptcy Act 1966 (Cth).

In light of Hines' lack of standing to defend the proceeding, the court granted Westpac's application for summary judgment. The court determined that, given Hines' bankruptcy status and the absence of any leave from the court or his trustee in bankruptcy, he could not contest the proceedings. Consequently, the court ordered the possession of the mortgaged property in favour of Westpac, as sought in the application for summary judgment. The court's decision was based on the clear statutory prohibition on the legal capacity of undischarged bankrupts to defend legal proceedings without the requisite leave.

Orders