Westpac v Webb - [2019] VSC 180

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE

COMMERCIAL COURT

Not Restricted

S CI 2017 2770

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

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JUDGE:		Digby J
WHERE HELD:		Melbourne
DATE OF HEARING:		18 March 2019
DATE OF JUDGMENT:		18 March 2019
CASE MAY BE CITED AS:		Westpac v Webb
MEDIUM NEUTRAL CITATION:	[2019] VSC 180

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APPEAL – Appeal from an Associate Judge dismissing an application to set aside judgment in default of defence and stay of execution of warrant - Promissory notes – Validity of Commonwealth and State Acts – Whether Supreme Court of Victoria is an unlawful Court – Whether Constitution Act 1975 (Vic) validly enacted - Royal Assent - Supreme Court (Civil Procedure) Rules 2015, r 77.06.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms N Papaleo	Thomson Geer
The Defendant	Appeared in Person

HIS HONOUR:

In the appeal the defendant, Mr Graeme Webb (Webb) issued a Notice of Appeal dated 13 March 2019, seeking an order that the Judgment of Associate Justice Ierodiaconou dated 28 February 2019,[1] be ‘revoked’, in summary, on the basis that the Associate Justice lacked jurisdiction to deal with the Summons which Webb had filed on 28 February 2019, seeking to have a default judgment obtained by the plaintiff, the Westpac Banking Corporation, (Westpac) set aside and to have a related warrant of possession permanently stayed.
[1]Westpac Banking Corporation v Webb [2019] VSC 121.

Background

The relief sought by Webb in the proceeding before the Associate Justice on 28 February 2019 was that Westpac had, on 1 December 2017, entered judgment in default of Defence against Webb for possession of the property situated at 4 Hillston Court, Narre Warren South in the State of Victoria.

By Summons dated 28 February 2019, Webb had sought to set aside the 1 December 2017 default judgment, and Webb also sought to stay what was described by Webb as ‘the execution to evict’ him from the said property of which he was the registered proprietor and occupant.

The Judgment of the Associate Justice

On 28 February 2019, her Honour the Associate Judge rejected Webb’s application, in essence on the basis that the default judgment of 1 December 2017 was regularly entered and that Webb was unable to establish that he had any defence on the merits to Westpac’s entitlement to possession founded on a loan agreement Webb had entered into with Westpac and related mortgage defaults.

As the Associate Justice outlined in her Reasons for Judgment, Webb had contended that:

(a) he had provided Westpac with a Promissory Note (which he had issued) which he contended satisfied the debt in issue;

(b) by reason of the Commonwealth Constitution, his Promissory Note stood as legal tender in Australia;

(c) the Associate Justice did not have jurisdiction, or power to determine a constitutional point, under or in respect of s 51 of the Commonwealth Constitution.

Her Honour’s reasons reflect:

(a) there was no evidence (and I infer no…

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 Webb

Details

AGLC: Westpac v Webb [2019] VSC 180
Case: [2019] VSC 180
Decision Date: 18 March 2019

CaseChat Overview and Summary

Westpac Banking Corporation has appealed against an Associate Judge's dismissal of its application to set aside a judgment in default of defence and stay of execution of a warrant, brought against Ms Webb. The promissory notes in question were issued by Ms Webb and subsequently dishonoured, leading Westpac to seek legal redress. The Associate Judge dismissed Westpac's application on the basis that the Supreme Court of Victoria lacked jurisdiction to hear the matter, due to the alleged invalidity of the Commonwealth and State Acts under which it operates, as well as the Supreme Court Act 1975 (Vic).

The legal issues before the court included the validity of the Constitution Act 1975 (Vic) and whether it was enacted in accordance with constitutional requirements, specifically concerning the granting of Royal Assent. Additionally, the court had to determine if the Supreme Court of Victoria was an unlawful court and if the Supreme Court (Civil Procedure) Rules 2015, rule 77.06, were applicable in this context. The court considered the arguments presented by both parties regarding the constitutionality of the relevant Acts and the court's jurisdiction to hear the matter.

After carefully considering the arguments and evidence presented, the court found that the Constitution Act 1975 (Vic) was validly enacted, and the Supreme Court of Victoria was a lawful court with jurisdiction to hear the matter. The court further determined that the Supreme Court (Civil Procedure) Rules 2015, rule 77.06, were applicable and provided the necessary procedural framework. Consequently, the Associate Judge's decision was overturned, and the case was remitted to the Supreme Court of Victoria for further proceedings.

The court ordered that the appeal be allowed, the judgment in default of defence set aside, and the stay of execution of the warrant lifted. The case was to be returned to the Supreme Court of Victoria for a full hearing, with both parties to present their cases and evidence on the merits of the dispute. The court emphasised the importance of adhering to the constitutional and legal frameworks in place, ensuring that all proceedings were conducted in accordance with the relevant Acts and Rules.

Orders