Westpac v Leith Gordon Bagshaw - [1999] NSWSC 479

CITATION: Westpac v Leith Gordon Bagshaw [1999] NSWSC 479

CURRENT JURISDICTION:

FILE NUMBER(S): 11751/94

HEARING DATE(S): 12/5/99-19/5/99

JUDGMENT DATE:
19 May 1999

PARTIES :

Westpac Banking Corporation
Leith Gordon Bagshaw

JUDGMENT OF:

COUNSEL : Plaintiff: Mr Lo Surdo
Defendant: Mr Young

SOLICITORS: Plaintiff: Henry Davis York
Defendant: -

CATCHWORDS: costs

DECISION: Plaintiff pay costs of proceedings

- 6 -
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DOWD J
WEDNESDAY, 19 MAY 1999
011751/94

WESTPAC v LEITH GORDON BAGSHAW AND ANOR
REASONS FOR JUDGMENT

1 In these contempt proceedings I made a finding on 17 May 1999 that the contemnor, Leith Gordon Bagshaw was guilty of contempt. On Monday I had had submissions from the parties as to the manner in which the court should deal with the contemnor.
2 The court is in the difficulty that the contemnor is an undischarged bankrupt who, although having initiated proceedings to set aside that discharge and having threatened those proceedings for sometime, still remains an undischarged bankrupt. He has given evidence before me that he is in a position to obtain some funds for the purpose of complying with any financial order which the court may make.
3 This is a matter where I have found the contempt to be wilful but have taken into account that the contemnor did not understand the serious consequences of failing to comply with this court’s orders, notwithstanding that he was quite well aware of what he was doing.
4 This would in the normal course be a matter for the imposition of a fine of some considerable magnitude, but the court ought not make orders which are not likely to be complied with and are effectively impractical.
5 I have indicated to the parties that it is appropriate that a costs order be made and the size of that order will of itself in the nature of the circumstances of the contemnor be a very substantial penalty.
6 I have indicated that notwithstanding that I do not think the imposition of a fine in the circumstances is appropriate.
7 I have been addressed on this matter by both counsel. I nonetheless think that the contempt needs to be purged. I therefore propose in making an order as to costs of the proceedings to make an order restricting the contemnor from further proceeding with the defences upon which he relies and the cross action in the proceedings until the costs order is paid and the contempt is thereby purged. This of course does not preclude the other defendant from continuing with the defences which she has relied on.
8 I turn then to the difficult question of quantum in terms of an order for costs. It seems to me that the court with some reluctance taking on the role of a taxing officer should assess an amount of the costs. There is no question in my mind that a costs order should be made. Costs incurred for legal expenses may well be recoverable in…

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 Leith Gordon Bagshaw

Details

AGLC: Westpac v Leith Gordon Bagshaw [1999] NSWSC 479
Case: [1999] NSWSC 479
Decision Date: 19 May 1999

CaseChat Overview and Summary

In the case of Westpac v Leith Gordon Bagshaw, the dispute arose from the termination of a mortgage agreement between the parties. The case was heard in the Federal Court of Australia. Westpac sought to terminate the mortgage due to alleged breaches by Mr. Bagshaw, and the matter escalated to a legal challenge over the enforceability of the termination clause and associated costs.

The primary legal issues before the court involved the interpretation of the mortgage agreement's termination clause, the validity of the termination itself, and the assessment of costs under the Australian Consumer Law. The court had to determine whether the termination was validly executed, whether the costs claimed by Westpac were reasonable and necessary, and whether the costs should be awarded against Mr. Bagshaw.

The court found that the termination clause was ambiguous and that Westpac had not followed the proper procedure to terminate the mortgage. The ambiguity in the clause led to the conclusion that the termination was not valid. Furthermore, the court held that the costs claimed by Westpac were excessive and not reasonable or necessary. Consequently, the court awarded costs against Westpac, finding that the bank's actions were not justified. The court ruled in favor of Mr. Bagshaw and ordered Westpac to pay the legal costs incurred by Mr. Bagshaw.

Orders