Westpac New Zealand Limited v Hatton

[2013] NZHC 505

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV2012-404-004429 [2013] NZHC 505

UNDER  Part 12 of the High Court Rules

IN THE MATTER OF     an application for summary judgment

BETWEEN  WESTPAC NEW ZEALAND LIMITED Plaintiff

ANDIAN CHARLES HATTON First Defendant

ANDPAULINE JEAN JONES Second Defendant

Hearing:         13 March 2013

Appearances: P V Shackleton/F M Kirkcaldie for plaintiff

M Singh for defendants

Judgment:      15 March 2013

JUDGMENT OF ASSOCIATE JUDGE ABBOTT

This judgment was delivered by me on 15 March 2013 at 5pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:

P Shackleton/F Kirkcaldie, Simpson Grierson, Private Bag 92518, Auckland 1141

M Singh, Glaister Ennor, PO Box 63, Auckland 1140

WESTPAC NEW ZEALAND LIMITED V IAN CHARLES HATTON HC AK CIV 2012-404-004429 [15 March

2013]

[1]      The plaintiff bank (Westpac) has applied for summary judgment against the defendants (the first defendant Mr Hatton and the second defendant Ms Jones) for the sum of $351,757.64, as the balance due and payable to the bank under a loan made to them in 2006 for the purchase of a residential property in Fisher Point Drive, Auckland City.

[2]      The  defendants  gave  Westpac  a  mortgage  over  the  property.    After  the defendants failed to meet payment obligations under the loan, Westpac exercised its powers of sale under the mortgage to sell the property.  It now seeks the balance due after crediting the net proceeds of sale.

[3]      The defendants oppose the application for summary judgment.  They contend that Westpac was not entitled to exercise its power of sale, because it did not validly serve the requisite notice under the Property Law Act 2007 ahead of the sale.  They contend that they have a counterclaim against Westpac for a lost opportunity to freehold the property and thereby increase its value, which they should be entitled to set off against the outstanding balance of the loan.

[4]      The application turns on whether the defendants have an arguable case for their contention that Westpac cannot rely on service in accordance with an order for substituted service made on 7 February 2012.   If so, there is a further issue as to whether the defendants have established an arguable case for their alleged counterclaim and set-off.

[5]      In  order  to  understand  the  arguments  on  the  key  issue  of  service,  it  is necessary to provide some background, by way of context.

Background

[6]      There  is  no  dispute  that  Westpac  made  the  loan,  or  that  the  defendants provided a mortgage over the property as security.

[7]      The defendants purchased the property as an investment.  They have resided in England at Wilsteed Lodge, 5 Grove Road, Lee-On-Solent, Hampshire for the past six  years (a property management company has managed the company on their behalf).

[8]      It is not in dispute that payments due under the loan and mortgage were not made in full in late 2009 or early 2010, and that after remedying the initial default the account  was  again  in  default  in  mid  2010.   Westpac made  demand  on  the defendants (by letter to their English address) in July 2010, but the account has been in arrears since that date, notwithstanding a lump sum payment of $9,000 in November 2010 (which still left arrears at that time of $2,215.42).

[9]      Westpac issued four notices under s 119 of the Property Law Act 2007 over a two year period, for varying reasons.  Its agent had difficulty effecting service of the notices on both defendants at different occasions.

[10]     The first notice was issued in November 2010.  Westpac’s agent served that notice on Ms Jones on 26 November 2010 (at Wilsteed Lodge in England) but was unable to serve Mr Hatton.  The agent reported his inability to serve Mr Hatton, and that Ms Jones had refused to provide contact details for him.

[11]     Westpac sought directions for service on Mr Hatton, and on 7 February 2011 obtained orders dispensing with service on Mr Hatton and directing that service be effected, inter alia, by sending a copy of the notice and order to Mr Hatton’s email address and either by delivering the notice and order to Ms Jones at Wilsteed Lodge or by affixing the documents to the door of that property.

[12]     Westpac issued a second notice (the earlier one having expired) and its agent served Ms Jones in person again, and Mr Hatton pursuant to the order for substituted service.

[13]     The second notice expired un-remedied, and Westpac proceeded to arrange an auction in July 2011.  However, the property was withdrawn from auction because it was found that although the property comprised both a residential apartment and an

associated car park, the mortgage was only in respect of the apartment.   Westpac took steps to have the mortgage registered over the car park and then issued a third notice in respect of the amended mortgage.

[14]     Westpac’s agent served the third notice on Mr Hatton personally at Wilsteed Lodge on 19 October 2011, but was unable to serve Ms Jones (there is a dispute as to what was said and done by Mr Hatton about serving Ms Jones, at the time he was served).  Westpac’s agent returned to the property on several occasions after serving Mr Hatton but was unable to make contact with either Mr Hatton or Ms Jones on those occasions.

[15]     After receiving reports from the agent, Westpac made a second application for directions for service in respect of both defendants.  An order was made on 7

February 2012, in the following terms:

(a)      That personal service on the Respondents of any notices issued by the applicant under sections 119 and 190 of the Property Law Act 2007 be dispensed with, and that service of any such notices be effected by:

(i)Affixing copies of any such notices to the front door of the premises at the premises of Wilsteed Lodge, 5 Grove Road, London, England; and

(ii)Sending copies of any such notices by email to [email protected]; and

(b)That these orders are to remain in force only so long as applicant has no means of personal service.

[16]     Westpac  issued  a  fourth  notice  (amending  the  time  for  remedying  the default).  Its agent affixed the fourth notice to the front door of Wilsteed Lodge, and its solicitors sent a copy of the notice to Mr Hatton’s email address ([email protected]), in accordance with the directions order, in the latter part of February 2012.

[17]     After the time for remedying the defaults had expired, Westpac proceeded to sell the property at auction (on 23 May 2012). After the sale was settled (on 20 June

2012), Westpac made demand on the defendants, by letter addressed to them at their English residence, for the balance after crediting the proceeds of sale.   Westpac issued this proceeding, and its application for summary judgment in July 2012.  The proceedings were served on the defendants, after Mr Hatton contacted Westpac’s solicitors in September 2012 and the parties came to an arrangement for service.

Legal principles

[18]     Counsel  were  agreed  that  the  principles  that  the  Court  is  to  apply  in determining an application for summary judgment are sufficiently set out in the succinct statement of the Court of Appeal in Krukziener v Hanover Finance Ltd:1

[26] The principles are well settled. The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried: Pemberton v Chappell [1987] 1 NZLR 1 at 3 (CA). The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated: MacLean v Stewart (1997) 11 PRNZ 66 (CA). The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable: Eng Mee Yong v Letchumanan [1980] AC 331 at 341 (PC). In the end the Court’s assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it: Bilbie Dymock Corp Ltd v Patel (1987) 1 PRNZ

84 (CA).

The opposing arguments

[19]     As the defendants do not challenge Westpac’s case that the loan is due, the essential  question  for  the  Court  is  whether  Westpac  has  established  that  the defendants do not have an arguable defence.   As already mentioned, that comes down to whether there is a valid argument that Westpac was not entitled to exercise

its power of sale and, if not, whether the defendants have put sufficient material

1 Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307, (2008) 19 PRNZ 162 at

[26].

before the Court to show there is an arguable counterclaim and set-off.  Although it is for Westpac to satisfy the Court that there is no arguable defence, it is convenient to address these questions first by reference to the arguments of the defendants.

[20]     The defendants’ argument, in outline, is:

(a)      Before Westpac was entitled to exercise its power of sale it had to comply with the strict requirements of the Property Law Act 2007, and particularly the requirement to serve notice of default2  advising the defendants of the steps they needed to take to remedy the default and the time for doing so.

(b)      Westpac’s claim is predicated on valid service of the fourth notice,3

and Westpac’s solicitors’ letters of demand of 18 April 2012 and 27

April 2012.

(c)      Westpac  did  not  serve  the  notice  validly:  it  was  not  served  in accordance with any of the methods permitted by s 357, and in particular in accordance with the directions as to service, because the order expressly provided that it remained in force only “so long as [Westpac] has no means of personal service”.

(d)The order was invalid and ineffective from the outset because at the time it was made (but also at time of the purported service) Westpac knew the whereabouts of the defendants and therefore had means of personal service.

(e)      The fourth notice did not come to the attention of the defendants and they lost the opportunity to remedy their defaults, and to freehold the property and gain an increase in value as a consequence.

(f)      Whether they were able to remedy their default and to freehold the property,  and  the  value  of  the  lost  opportunity  to  freehold  (the

2 Under s 119.

3 Paragraph 10 of the statement of claim.

resultant increase in value that gives rise to the counterclaim and set- off) are all matters for trial.

[21]     Towards the end of his oral argument, counsel for the defendants also argued that the order for service was invalid because of errors in the evidence in support of the application for directions.  This argument was not raised (at least not expressly) in the defendants’ notice of opposition, nor by counsel at the commencement of the hearing when asked to confirm the basis on which the defendants’ case was being advanced.   The argument is potentially open on the evidence  before the Court. Although counsel did not advance it in these specific terms, it appears to be an argument that the order was improperly obtained, and should be set aside in the Court’s inherent jurisdiction.

[22]     Counsel also challenged an affidavit by Westpac’s agent in England filed in reply, on the basis that it was not properly in reply and it should not be read as the defendants had not had an opportunity to respond to it.4

[23]     Westpac did not dispute the submission that it needed to serve notice under the Property Law Act before it was able to exercise its power of sale, but contended that it had done so, in accordance with the order of 7 February 2012.   Counsel submitted that the phrase “has no means of personal service” referred to the ability to effect personal service rather than knowledge of the place of residence of the defendants (which clearly it had).  Westpac says that the evidence is clear that it has complied  with  the  directions  as  to  service,  and  the  defendants  do  not  have  an arguable case that it was not entitled to exercise the power of sale.

[24]     In relation to the lately raised argument that the order was invalid because of the evidence on which it was based, counsel for Westpac accepted that the language used in the affidavit in support of the application was inaccurate (Westpac knew of the defendants’ place of residence), but submitted that this was apparent in any event from the agent’s report produced as part of that affidavit, and the underlying basis of the application for directions was that, despite reasonable efforts, the agent had been unable to effect personal service.

[25]     Counsel submitted that the agent’s affidavit was properly in reply, but that in any event  the Court  did  not  need  to  resolve  the facts  in  it  that the defendants contested.

[26]     Lastly, counsel for Westpac submitted that even if there was an issue over service under the directions order (which was not accepted), the defendants had been properly served by earlier notices (relying on s 361 of the Property Law Act which contemplates and permits service on multiple parties under more than one notice).

Is there an arguable defence of invalid order?

[27]     Although the defendants’ argument that the order was invalid because of omissions or errors in the evidence was advanced late, and somewhat tentatively, I will address it first, as the Court has inherent jurisdiction to set aside an order that is obtained improperly.

[28]     Although originally relying on these matters as context for the order that was granted, counsel for the defendants challenged two aspects of the evidence given by Westpac in support of the application for the second order for directions:

(a)      The deponent, a legal executive in the employ of the solicitors for Westpac, stated in evidence that the third notice could not be served on Ms Jones “as the Respondents could not be located”.  In the next paragraph she said “the respondents’ whereabouts are unknown”.

(b)      The deponent failed to mention that the third notice had been served

on Mr Hatton in person, at the defendants’ residence in England, on

19 October 2011.

(c)      The  memorandum  of  counsel  in  support  of  the  application  for directions as to service contained the statement:

The Respondents cannot be located in New Zealand for the purposes of personal service as their whereabouts are unknown.

[29]     The statement that the defendants’ whereabouts is unknown is clearly wrong if that is taken to mean their general whereabouts.  Westpac and its solicitors knew where the defendants were residing in England – at Wilsteed Lodge.   I accept the submission of counsel for Westpac that although the affidavit and memorandum were poorly worded (by using the word “whereabouts” without qualification) it is apparent from reading the affidavit as a whole, and particularly the statement of belief that documents attached to the front door of Wilsteed Lodge were an appropriate  method  of  bringing  notices  to  the  attention  of  the  defendants,  that Westpac was  aware of  that  address  as  a  likely residence.   That  is  affirmed by

production of the agent’s service report5 which refers to several attendances at those

premises with a view to service on Ms Jones.

[30]     I  accept  that  the  statements,  taken  in  isolation,  would  be  misleading. However, when read in the context of the affidavit as a whole, it is clear that the case being  advanced  was  that  they were  having  difficulty locating  them  at Wilsteed Lodge, an address that was known to Westpac, for the purpose of effecting personal service.

[31]     The second aspect of objection again, on its face, is entirely understandable.

Westpac’s agent had been able to effect personal service on Mr Hatton on 19 October

2011.   The omission to refer to that (or indeed earlier service on Mr Hatton in person) when seeking a direction dispensing with personal service, without any other material, would clearly be misleading.   However, the deponent annexed a report made by the agent  to Westpac’s  solicitors  dated 13  December 2011  setting out attendances at the defendants’ address subsequent to the service on Mr Hatton on 19

October and  the agent’s  inability to  make contact  with  anyone in  that  property notwithstanding evidence suggesting someone was home (the evidence refers to the property being a semi-detached property and evidence of occupancy in the form of lights showing inside, and a vehicle parked in its driveway).

[32]     It is essential that a party seeking orders on a without notice basis, and particularly orders triggering significant consequences for the party affected by the order, should ensure that there is a full and frank disclosure of all material facts.

Without more, failure to do so is a basis for the Court to exercise its inherent jurisdiction to invalidate the order on the basis of an apparent miscarriage of justice. I am not satisfied, however, that this is a case requiring that consequence for the following reasons:

(a)      The application was made under s 357 of the Property Law Act 2007, which gives the Court a very broad discretion in relation to service of notices.

(b)There are no criteria as to the exercise of that discretion, such as the requirements in r 6.8 to show that personal service cannot be affected, of cannot be effected promptly (although those are matters that the Court can and will take into account in the exercise of the discretion).

(c)      Although the application (and supporting affidavit and memorandum) can be criticised quite properly for lack of clarity as to the grounds on which the order for dispensation of personal service was sought, there was ample disclosure of difficulty locating the defendants in the property known to be their residence, between 19 October 2011 and

13 December 2011.  That was a proper ground for the order that was made, and there was is a sufficient evidential basis for it. The fact that Mr Hatton was served in person on a previous occasion is unlikely to have resulted in refusal of the order, in light of the evidence as to difficulty making contact with the defendants.

(d)As I have already said, the thrust of the application was that the agent had been unable to locate the defendants, in terms of making contact with them at that address in nearly two months. The statements that the whereabouts of the defendants was not known was inaccurate by any measure, but again in light of the agent’s report, and evidence of the first order, did not mislead on the question of inability to make contact to effect personal service.

[33]     On their own evidence, the defendants learned of the order dispensing with personal service, and directing service by affixing to the door of their property and by sending to Mr Hatton’s email address, on 23 October 2012 when Mr Hatton accepted personal service of these proceedings at Wilsteed Lodge.  Despite having had ample time to do so, the defendants have not applied to set aside that order (on the basis that it was procured improperly), nor applied for leave to appeal it out of time.   Moreover, the defendants did not take the point expressly in their notice of opposition, relying instead on alleged non-compliance with the terms of the order. As I have said already, counsel for the defendants raised it, but in somewhat tentative terms in the latter part of his argument.  The failure to advance the point expressly and as soon as they learned of the order has not been addressed by the defendant

[34]     The overall justice of the case also has to be assessed in a context where the defendants can be taken to have been aware of the continuing arrears and knew of the earlier notices and Westpac’s intention to proceed to mortgagee sale, and Westpac had grounds (in the form of the reports from their agent) for believing that the defendants were not cooperating in relation to service.  Westpac’s view that its agent would not get cooperation would have been reinforced by the defendants’ lack of response to regular and consistent correspondence alerting the defendants to the steps being taken, after November 2010 when Westpac made it clear to Mr Hatton that it required all arrears to be met before it would consider a request on behalf of the defendants to advance funds to freehold the property.

[35]     I find that the defendants do not have an arguable defence on the grounds of an invalid order.

Challenge to agent’s affidavit in reply

[36]     The plaintiff filed an affidavit by its service agent in England, Mr Lambert, in reply.  In that affidavit he confirms service of the third notice on Mr Hatton on 19

October 2011, and expands on the nature of the contact made (allegedly by passing documents through a letter slot in the door) and says that Mr Hatton would not communicate further (particularly in relation to service on Ms Jones).

[37]     The defendants say that they dispute this version of the contact.  They say that the evidence should have been given in support of the application, rather than in reply, and that they should be able to respond and test the agent’s evidence.   The defendants did not seek leave to file a further affidavit in response.

[38]    I am not persuaded that this was evidence that Westpac ought to have anticipated, and included in its initial evidence.   Its case was based on service in accordance with the order for substituted service made on 7 February 2012.   The challenge to that order emerged with the notice of opposition, and the defendants’ argument that the order is ineffective because of Westpac’s knowledge of their place of  residence.     In  their  joint  affidavit  the  defendants  added  that  they  always cooperated over service.  Westpac was entitled to reply to that contention, and the evidence  of  Mr  Lambert is  clearly an  aspect  of that  reply.   The circumstances

distinguish the case from the circumstances in Westpac v Cooper6  on which the

defendants rely.   Westpac’s claim in this case was clearly supported by its initial evidence, and the issue over service could not reasonably have been anticipated.  At most, the defendants may have had a case for further evidence in response.  They chose not to pursue that course (perhaps anticipating the view that I have reached that it is not necessary to determine what was or was not said or done by Mr Hatton).

[39]     I also accept the argument for Westpac that the Court does not need to resolve the dispute as to what took place when Mr Hatton was served on 19 October 2011 in any event – it was sufficient for Westpac’s application for substituted service that its agent was unable to make contact with the defendants to effect service after that date.

[40]     I find that the affidavit of Mr Lambert can be read as an affidavit in reply.

Is there an arguable defence of non-compliance with the terms of the order?

[41]     The defendants contend that the order of 7 February 2012, and particularly paragraph 3(b) of that order, has to be construed in the context that Westpac had

knowledge both of the defendants’ place of residence and that personal service had

6 Westpac v Cooper (2010) 20 PRNZ 568.

been effected previously on both Ms Jones and Mr Hatton at that address.   In his written submissions, counsel for the defendants also relied on the fact that there was no evidence as to whether Westpac’s agent sought to ascertain whether either Mr Hatton or Ms Jones were home before affixing the notice to the door, but in his oral argument  counsel  accepted  (rightly  in  my  view)  that  the  order  did  not  require Westpac to make any further attempt to serve the notice personally before affixing it to the door.

[42]     Westpac contends that paragraph 3(b) must be read as requiring a change of circumstance affecting Westpac’s ability to effect personal service following the order,  and  relied  on  the  evidence  that  the  defendants  did  not  contact  Westpac between the time of making the order and date of service in accordance with it.  He submitted that an interpretation which required Westpac to continue to attempt personal service would defeat the purpose of the order.

[43]     The order was predicated on the inability of Westpac’s agent to effect service at the defendants’ address. That is the context in which paragraph 3(b) of the order is to be construed.  In that context the order must mean that it remains in force until such time as there is a change in circumstances, such as the defendants making themselves available for personal service (there is no evidence to suggest that they did so).  The starting point must be that at the time the order was made there was no means of personal service (on the facts, because the agent could not make contact with the defendants personally).   It is not open to the defendants to argue that by reason  of  Westpac’s  knowledge  of  the  defendants’  address  and  Mr  Hatton’s telephone number Westpac had a means of personal service which it did not employ. I do not accept the illogical conclusion to that proposition that the order’s force was extinguished as soon as it was made.

[44]     The defendants had to know that they were in default of their obligations under the loan agreement and mortgage, and that Westpac was pursuing recovery action.  The construction that they wish to place on the order is that Westpac was obliged to take the initiative in procuring the means of personal service (for example, by returning to the property or by telephoning them).  However, that construction is inconsistent with the earlier part of the order dispensing with personal service, and

with s 357(1)(b) of the Property Law Act: this provision (that once an order is made, the notice is adequately served if served in accordance with the order) points away from the requirement for the party with the benefit of the order having to continue to attempt service personally, or other than as directed.

[45]     In the context of difficulties locating the defendants at their residence (even when there were signs of occupancy) I consider that paragraph 3(b) of the order leaves the order in place unless the defendants provide Westpac with the opportunity to effect personal service. As I have said, they knew their account was in arrears and that Westpac was pursuing recovery action under the mortgage, and on a previous occasion had obtained an order dispensing with service.  It would negate the order if Westpac had to continue with steps to try to effect personal service in the absence of some overt step of cooperation on the part of the defendants such as responding promptly and cooperatively to the regular correspondence they were receiving, and suggesting particular times and places where documents could be served on them.

[46]     The defendants sought to rely on their evidence that the notice did not come to  their  attention  before  September  2012,  referring  to  the  possibility  of  the documents having been detached from the door by strong winds that are regular at their address, and saying that the email copy was never received (contending that this was not the only case of difficulties receiving email).

[47]     Although it is not strictly necessary for me to address this argument, because I have found that Westpac did comply with the order, thus affecting service validly, I note that the defendants have not given any evidence to support their contention in relation to the loss of email in particular.  Westpac has given evidence that it did not receive any notification that delivery had failed, and the defendants have not given evidence of any other email that was not received.   In particular, there is no suggestion  that  regular  email  correspondence  from  Westpac  to  the  defendants leading up to the mortgagee sale, and reporting after it, was not received.  The only matter raised by the defendants in relation to Westpac’s other email correspondence

is that on one occasion7  Mr Hatton was unable to open an attachment.   Westpac

immediately resent it, and there was no response that Mr Hatton could not open the attachment on the second occasion.

[48]     Weighing all of these matters, I find that the defendants do not have an arguable case that Westpac did not comply with the terms of the order of 7 February

2012, and accordingly that Westpac was not entitled to proceed to sell the property by mortgagee sale.

Is there an arguable case for a counterclaim and set-off?

[49]     In case I am wrong on the interpretation of the order for service, I will also address the defendants’ contention that they have an arguable case for a counterclaim or set off for the lost opportunity to freehold their section and in that way to increase its value.  I note at this point that the defendants have not challenged the process for the mortgagee sale and hence the price obtained for it (as a leasehold property).

[50]     It  is  trite  law  that  where  a  plaintiff  establishes  a  prima  facie  case  for judgment, the defendant must give sufficient evidence (short of proof) to establish a basis for an arguable defence.8

[51]     The defendants have asserted in their affidavit that they had the option to freehold the property, but have given no evidence of their ability to exercise that option, nor as to any increase in value as a result of freeholding (in other words showing that the potential market value after freeholding would be greater than the value without freeholding plus the costs of freeholding).

[52]     I do not accept the submission of counsel for the defendants that these are purely matters for trial.  The defendants have to give some evidential basis for their defence.  I accept that there is some evidence of the availability of the option in 2010 (the defendants asked Westpac to consider making finance of $250,000 available to allow them to pursue the freeholding), but there is no evidence that offer was still open as at the time of service of the notice in February 2012, or between then and the date of mortgagee sale.  More significantly, however, there is no evidence from the

defendants as to their ability to service whatever borrowing was required to effect the freeholding, which would seem, on the defendants own evidence, to be at least

$250,000.  Against that there is the evidence from Westpac that the defendants had failed to clear even the arrears as at February 2011 by the date of sale, which suggests that it is improbable that they would be able to service any further borrowing.

[53]     I note that the defendants were given leave on 26 November 2012 to file any further affidavits in support of their opposition, but they did not add to the evidence they had given in their joint affidavit.

[54]     On the evidence before the Court, I find that the defendants do not have an arguable case for a counterclaim and set-off, and hence do not have an arguable defence to the plaintiff’s application for summary judgment.

Alternative argument on service

[55]     Given the findings I have made in relation to service and lack of an arguable case for a counterclaim and set-off, I do not need to address Westpac’s alternative argument that it was also entitled to rely on service of the earlier notices, with service on both defendants to be effective on the date that the second of them was served effectively.9

[56]     Counsel for the defendant argued that it was not open to Westpac to rely on service of the earlier notices as its claim was brought on the basis that the power of sale arose on service of the fourth notice.

[57]     Westpac’s argument could be valid in circumstances where the notices refer to the same original default but with additional sums being added to it in successive notices, as is the position in this case.  However, as the point was only raised in oral argument,  and counsel  for the defendants therefore did  not have opportunity to address it fully, I make no finding on the point.

Decision

[58]     I find that the defendants do not have an arguable defence to the plaintiff’s

claim.

[59]     I enter summary judgment for the plaintiff against the defendant for

(a)       The sum of $351,757.64;

(b)Interest on the sum of $351,517.27 accruing at the rate of 11.24% per annum and compounding on the 12th day of every month from 14 July

2012 until the date of judgment;

(c)      A declaration that the plaintiff is entitled to interest on the judgment sum at the rate of 11.24% per annum, compounding on the 12th day of every month, from the date of judgment until the date of actual payment.

[60]     Counsel are agreed that costs should follow the event.   As the successful party, Westpac is entitled to its costs on a scale 2B basis together with disbursements

as fixed by the Registrar.

Associate Judge Abbott