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  • Unreported Judgment

National Australia Bank v McCall

 

[2011] QSC 25

 

SUPREME COURT OF QUEENSLAND

PARTIES:

FILE NO:

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

DELIVERED ON:

28 February 2011

DELIVERED AT:

Brisbane

HEARING DATE:

17 December 2010

JUDGE:

McMurdo J

ORDER:

The plaintiff’s applications are dismissed.

CATCHWORDS:

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – PARTICULAR CASES – BANKS OR FINANCIAL INSTITUTIONS – where the applicant bank made three loans to the respondent – where an employee of the bank told the respondent that the third loan would stand alone from the first and second loans – where the bank represented it assessed and approved the third loan on correct information of the respondent’s income and assets – where the bank represented the respondent satisfied its lending criteria – whether the bank engaged in misleading and deceptive conduct – whether the bank engaged in unconscionable conduct – whether the bank breached its obligations under the Code of Banking Practice – whether summary judgment in favour of the applicant should be granted

Australian Securities and Investments Commission Act 2001 (Cth)

Trade Practices Act 1974 (Cth)

Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349

Clairview Developments Pty Ltd v Law Mortgages Gold Coast Pty Ltd [2007] 2 Qd R 501

Commonwealth Bank of Australia v Renstel Nominees Pty Ltd [2001] VSC 167

Commonwealth Bank of Australia v Spira (2002) 174 FLR 274; [2002] NSWSC 905

Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151

Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161

Kendell v Sweeney & Ors [2005] QSC 064

Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234

COUNSEL:

A Pomerenke for the applicant

FL Harrison QC with J O’Regan for the respondent

SOLICITORS:

Allens Arthur Robinson for the applicant

Deacon & Milani for the respondent

[1] The plaintiff bank lent money to the defendant, Mr McCall, under three contracts.  The first was described as the Home Loan Facility, under which $500,000 was advanced in 2006.  The second was the Portfolio Facility, under which money was first advanced in March 2007.  Under that agreement, Mr McCall was able to draw up to a limit of at first $2,220,000, which was increased in December 2007 to $2,460,000.  These loans were each secured by mortgages over properties owned by Mr McCall at StLucia and the Gold Coast.

[2] No complaint is made by Mr McCall about the terms of those two loan contracts or the circumstances under which they were made.  Clearly the amounts claimed by the bank under these contracts were lent.  According to the admitted terms of those contracts, the bank was entitled to call up the amounts owing under them, as it did in late 2009.  Nothing was repaid.  Notwithstanding Mr McCall’s resistance to these proceedings, there is no dispute that he is indebted to the bank in the amounts which it claims under those facilities, although he resists the case that it is presently due and owing.

[3] The third contract was the so-called Market Rate Facility, which was the subject of a written agreement dated 9 November 2007.  The bank then lent $1,200,000 to Mr McCall, repayable within 12 months or upon an earlier demand.  He borrowed this money to complete his purchase of a property at Noosa on 12 November 2007.  This facility was secured by a mortgage over that land as well as by the mortgages over the St Lucia and Gold Coast properties.

[4] Almost immediately after the third loan was made, he says that he experienced difficulty in meeting his commitments.  He says that in December 2007, he realised that the interest payments on the Market Rate Facility, combined with the payments on the other loans, exceeded his income.  It was in that circumstance that the bank increased the limit on the Portfolio Facility to $2,460,000.

[5] In essence, Mr McCall’s claim is that the bank should not have lent him the money under the third loan.  He says that this loan was the result of misleading and deceptive conduct by the bank, in contravention of s12DA(1) of the Australian Securities and Investments Commission Act 2001 (Cth) (“the ASIC Act”) or alternatively s 52(1) of the Trade Practices Act 1974 (Cth) (“the TPA”). 

[6] There are three ways in which the bank is said to have contravened that provision.  The first is by its employee, Mr Hackett, saying to Mr McCall that the Market Rate Facility would be a “stand alone facility”, whereas the agreement which was made was one which, unknown to Mr McCall at the time, permitted the bank to rely upon a default under that facility in order to exercise its default powers under the other facilities. 

[7] The second and third misrepresentations alleged by Mr McCall relate to what he says occurred within the bank in its consideration of his application for this loan.  He pleads, as the so-called Assessment Representation, that the bank represented that it had assessed and approved his loan application on the basis of information provided by him and information that was correct or reasonably treated as such.  And there is the so-called Satisfaction Representation, under which the bank is said to have represented that his loan application satisfied its lending criteria.  His case in these respects is that the bank did not act upon information which he had provided, and in particular his true earnings and assets, but upon false figures which Mr Hackett had made up in order to have his employer make this loan:  hence the allegation that the bank falsely represented that it had acted upon correct information.  Mr McCall says that the true figures as to his income and other financial circumstances, he now realises, would not have satisfied the bank’s lending criteria:  hence the allegation that the bank falsely represented otherwise.  He says that he became aware of these matters only when he was given access to the bank’s files in about August 2009. 

[8] He claims that Mr Hackett inflated his income and assets in, amongst others, these ways.  His income for the six months to December 2008 was put forward as $372,000 rather than about $197,500.  His average gross income as an employed stockbroker for the financial years 2005, 2006 and part of the year for 2007/8 was put forward as $459,000, when in truth it was about $230,000.  There were other overstatements of his income from various sources.  And it was recorded that he owned shares worth about $700,000 when they were worth about $327,000. 

[9] Alternatively, Mr McCall pleads that the bank engaged in unconscionable conduct in contravention of s12CB(1) or s12CC(1) of the ASIC Act.  As with the misleading and deceptive conduct claim, there is an alternative reliance upon the corresponding provisions of the TPA.  The same facts are relied upon to plead unconscionable conduct as are relied upon in the misleading and deceptive conduct claim. 

[10] For the bank’s misconduct of any description, Mr McCall pleads that he is entitled to relief under s12GM of the ASIC Act (or s87 of the TPA) being orders:

“(a)restoring Mr McCall to the position he would have been in if the contraventions of the ASIC Act and TPA pleaded herein had not occurred; and

(b)preventing NAB from enforcing the Facilities until the relief pleaded in paragraph (a) above has been granted.”

The Facilities there mentioned are all three loans.

[11] Mr McCall further pleads that by an express term of the Market Rate Facility, the bank agreed to comply with the Code of Banking Practice, by which it became obliged to act “fairly and reasonably” and in a “consistent and ethical manner”, exercising the care and skill of a diligent and prudent banker in selecting and applying credit assessment methods and in forming an opinion about his ability to repay the loan.  He pleads that those obligations were breached by the bank in assessing and approving the application for the Market Rate Facility, as a result of which he has suffered loss and damage, which is identical to that claimed as the result of the misleading and deceptive conduct and unconscionable conduct.

[12] The bank sues for a sum of $4,486,257.40, being the total of the amounts due under the three facilities, and seeks to recover possession of the St Lucia, Gold Coast and Noosa properties.  But by this summary judgment application, it seeks to recover only under the Portfolio Facility and the Home Loan Facility and to recover possession only of the St Lucia and Gold Coast properties.  It does not expressly concede that there is a triable issue on the balance of its claim, but that is all but conceded by the limited relief it now seeks. 

[13] Mr McCall argues that the bank’s misconduct in relation to the Market Rate Facility affects its position also on the other loans.  He says that he would not be in default under the other loans had he not borrowed under the Market Rate Facility, so that the bank should be precluded from enforcing the other loans and securities at least pending the outcome of his case in relation to the Market Rate Facility. 

[14] There is a further application by the bank, which is to strike out those paragraphs of the Amended Defence which plead the Assessment and Satisfaction Representations.  That would still leave the case of a representation that this would be a “stand alone” facility, so that this application could not put paid to the whole of Mr McCall’s case. 

[15] The Assessment Representation is pleaded as resulting from the matters alleged in paragraphs 11, 12, 13, 14, 15 and 24 of the Amended Defence.  Paragraph 11 alleges that Mr Hackett was the bank’s employee assigned to deal with Mr McCall.  Paragraph 12 alleges that in a conversation between Mr Hackett and Mr McCall, in which Mr McCall said he wanted to borrow $1.35 million to cover the purchase price on the Noosa property and other expenses associated with it, Mr Hackett responded that “we can do that for you” and that the bank “could do a stand alone loan” in the form of a “market rate facility”.  Paragraph 13 alleges that Mr McCall applied to the bank for a loan in that amount to be used for those purposes.

[16] Paragraph 14 pleads that Mr McCall had previously provided the bank with copies of his tax returns for the 2004, 2005 and 2006 years and a PAYG Payment Summary for the 2007 year, and that Mr Hackett had access to those documents.  Paragraph 14A pleads some of the contents of those documents. 

[17] Paragraph 15 pleads some exchanges between the two men during October 2007, in which Mr McCall provided further information as to his income and current shareholdings and a valuation of the Noosa property and in which Mr Hackett told him that the “absolute maximum I have been able to do for the new loan is $1.6M”. 

[18] Paragraph 24 pleads facts in relation to the execution of this third loan agreement, which was called a “Business Letter of Offer”.  The two men met at Mr McCall’s office where he signed the agreement in Mr Hackett’s presence without reading it or having it explained to him.  It is also there alleged that Mr Hackett did not inform him that the bank had assessed the application on the basis of incorrect information or that the bank had disregarded the information which Mr McCall had provided as to his income and shareholdings. 

[19] For the bank it is argued that those facts are insufficient to support the alleged Assessment Representation.  It is said that in none of the statements said to have been made by Mr Hackett, did he identify the information upon which the loan was in fact assessed, assert that any such information was correct or make any assertion about acting upon information which the bank was entitled to regard as correct.  But Mr McCall’s case is that in the light of the things which are pleaded, the bank impliedly represented that it was acting upon the income and assets of Mr McCall as he had put them forward.  In my view, there is a sufficiently arguable case, on the face of the pleading to found the so-called Assessment Representation in paragraph 25(a) of the Amended Defence. 

[20] Paragraph 25(b) pleads that:

“In the premises of paragraph (a) above, the Loan Application satisfied NAB’s criteria for the approval of loans (the Satisfaction Representation).”

The bank submits that the pleading in this respect should meet the same fate as that in paragraph 25(a).  That appears to be correct.  It follows that there is a sufficiently arguable basis pleaded for the so-called Satisfaction Representation.  It is hardly far fetched to suggest that had Mr McCall thought about it at the time, the bank’s conduct could have made him think that it was the information about his finances which he had provided which had satisfied the bank that it should make this loan.  Accordingly, the strike-out application should be dismissed.

[21] Section 12DA(1) of the ASIC Act provides that a person must not, in trade or commerce, engage in conduct in relation to financial services that is misleading or deceptive or is likely to mislead or deceive.  On Mr McCall’s affidavit, where he gives evidence of what Mr Hackett told him, there is an arguable case that the bank contravened that provision by the stand alone representation, because that was not the effect of the Market Rate Facility and of the other documents and securities signed in favour of the bank. 

[22] Mr McCall pleads that he entered into the Market Rate Facility on the basis of these three representations.  He has an arguable case in that respect at least as to the stand alone representation.  For the other representations, his evidence is as follows:

“17.If NAB had not made the above representations to me, or had told me that NAB, in assessing and approving the loan, had used income and shareholding figures that overstated my actual income and shareholdings and were different from the data that I had provided to it, I would not have accepted the loan.  I would not have signed the documents Mr Hackett asked me to sign on 9 November 2007.  Instead, I would have terminated the contract to buy the Noosa Property.  This is because, as a result of the Community Titles Scheme not being registered until after 30 September 2007, it was my understanding that I was entitled to terminate the contract to buy the Noosa Property, and as such I was not bound to settle the contract.  I had not applied to any other entity for a loan for the funds to buy the Noosa Property, so if I had not been offered a loan by NAB I would not have had the funds to complete the purchase.

19.Similarly, if I had known that, on accurate and reliable figures, my application did not satisfy NAB’s lending criteria, I would not have wanted to take the loan because I would have regarded the rejection as an opportunity to withdraw from the contract as I did not wish to be financially overcommitted.  I also would not have proceeded with the loan if I had been told that NAB in assessing and approving the loan application had used income and shareholding figures that overstated my actual income and shareholdings and were different from the data that I had provided to it.  I would have felt that taking the loan on that basis would have been like obtaining it by fraud.

[23] Mr McCall does not say that his contract to buy the Noosa property was subject to finance, or at least was still so in November 2007.  His case is that he had a right to avoid the contract because the Community Titles Scheme had not been registered by the required date and that had he been refused this finance by the bank, he would have terminated the contract.  But it is not his case that the purchase itself caused him loss.  There is no pleading or evidence as to the value of the Noosa property.  There is evidence that he unsuccessfully listed it for sale throughout 2008 and early 2009.  But that is different from saying that it was worth less than he paid for it. 

[24] Nor does he plead or give evidence that the bank’s representations made him believe that he could afford to borrow this money.  That would be a surprising case for Mr McCall, a stockbroker who, on his own evidence, had a large income and several investments.  He could hardly claim to have been a financial innocent. 

[25] What then is the alleged loss from the bank’s misconduct?  Paragraph 67 of the counterclaim pleads that he has suffered loss and damage “in the form of”:

“(i)moneys he has paid to NAB pursuant to the Market Rate Facility;

(ii)other costs he incurred in relation to settling under the Noosa Property Contract;

(iii)his potential liability to NAB under the Market Rate Facility;

(iv)his potential liability to pay default interest and other charges arising from a failure to make a payment under the Facilities;

(v)if NAB is permitted to terminate the Facilities:  the costs arising from such termination.”

[26] On the present evidence, Mr McCall’s case that he suffered loss from the Assessment and Satisfaction Representations appears to be weak.  It is effectively this:  had the bank not been misled by its own employee, it would not have made the loan and, contrary to what he thought at the time, that would have been a better result for him.  There is a substantial question therefore as to the causal connection or otherwise between those representations and his alleged loss.  And as to the “stand alone” representation, as I will discuss the bank has not relied upon a default under the Market Rate Facility to call up the other facilities.  Nor does it presently seek recourse to the St Lucia and Gold Coast properties to recover the debt under the Market Rate Facility. 

[27] However, because there was no argument as to those matters, and more generally whether Mr McCall has a defence to that part of the claim based on the Market Rate Facility, the present application should be determined upon the premise that he has that arguable defence.  In other words, I should assume that there is a case to be tried to the effect that he would not have borrowed under this third loan, but for the alleged wrongdoing of the bank.

[28] On the case pleaded by Mr McCall, there is no challenge to the enforceability of the other facilities, save that there is a claim for relief that the bank should be restrained from enforcing those facilities until Mr McCall is given relief under s12GM of the ASIC Act (or s87 of the TPA) putting him into the position he would enjoy without the Market Rate Facility.  With the benefit of the submissions, it appears that his case is this:  he is worse off because the debts under those other facilities are now presently due and payable whereas had he not been burdened by the Market Rate Facility, the bank would not have caused them to become due and payable or had it done so, he could have refinanced those other facilities.  Either way, he would not be in his present position where he is unable to pay what is now due.  To discuss those arguments, it is necessary to explain the bank’s entitlements under the other facilities.

[29] The bank was entitled to cancel the Portfolio Facility at any time, whether or not he was in breach of it.  It was expressly agreed that if and when the bank gave notice of that cancellation, the “portfolio limit” would reduce to zero and Mr McCall would repay immediately any unpaid balance in any linked account or any other money owing under that facility.  On 1 September 2009, the bank gave notice of cancellation.  In consequence, Mr McCall became obliged to immediately pay everything outstanding under that facility. 

[30] Under the Home Loan Facility, it was agreed that if he did not pay any amount due under that or another loan agreement, he would be considered in default for the purposes of the General Terms of that facility.  By cl19.1 of those General Terms, if Mr McCall was in default, the bank might give him a notice of default and if Mr McCall did not remedy his default within any period specified in the notice, then without any further notice, the total amount owing under the Home Loan Facility would become immediately due.  On 8 October 2009, Mr McCall was in default, at least because the Portfolio Facility had been cancelled and he had not repaid the amount due under it.  On that date, 8 October 2009, the bank demanded that he pay $4,266,758.56, being the unpaid balance as at 8 October 2009 of the Portfolio Facility, the Market Rate Facility and the Home Loan Facility.  Nothing has been repaid. 

[31] Importantly, the entire indebtedness under the Portfolio Facility was made immediately due and payable without the need for the bank to rely upon any default under that or any other loan.  It is now argued that the bank was subject to duties of good faith and also bound by the Code of Banking Practice to act fair and reasonably, in exercising its rights under the Portfolio and Home Loan Facilities.  But subject to those arguments, the bank was clearly entitled to act as it did with the consequence that the amounts demanded for those two loans became repayable.

[32] It is argued that the amount of $4,266,758.56 was an excessive demand, if allowance is made for damages claimed.  However, that is not to say that the total amount demanded was incorrect.  The bank has proved that it was the total of the amounts then owing according to the terms of the three loans.  At the highest for Mr McCall, he has a cross-claim for damages and for other relief.  But until those damages are awarded and can be set off,[1] or until there is some order under s12GM of the ASIC Act (or s87 of the TPA) which affects the bank’s entitlement, there are these debts due and owing to the bank.  Therefore he was bound to pay the sum of $4,266,758.56 as and when it was demanded. 

[33] The loss and damage pleaded by Mr McCall, as revealed by his further particulars, is that he has suffered an overall loss of $510,168.07.  Of that, an amount of $393,255.43 is said to be the total of what he has paid to the bank from 8 November 2007 to 30 April 2010 as a result of the Market Rate Facility.  His interest payments on that facility were made from drawings upon the Portfolio Facility.  In that way, he came to exceed the agreed limit of the Portfolio Facility.  The balance of the loss claimed is made up of various costs described as those incurred “in relation to settling the Noosa property contract”, which include an amount of $41,000 for what is said to have been the body corporate fees from 1 October 2007 to 23 November 2010.  There is also a claim for $67,000 described as “furniture package”, which is apparently for furniture he purchased for that property.  His claim makes no allowance for any earnings on that property. 

[34] The bank accepts, for present purposes, a loss in that sum of $510,168.07, by deducting it from the amounts owing under the Portfolio and Home Loan Facilities to arrive at the amount to which it now seeks summary judgment.  It says that this represents the best position which Mr McCall could reach at a trial. 

[35] For Mr McCall it was argued that the bank was under an implied obligation of good faith in relation to its exercise of its rights under the Portfolio and Home Loan Facilities, which it breached by calling up the moneys under those loans, as it did in September and October 2009.  It was submitted that the bank did not act in good faith, because the circumstances which caused it to exercise those rights, and in particular the Portfolio Facility being drawn beyond its agreed limit of $2.46 million, were ones of the bank’s making by its agreeing to the third loan.  In the same way it was argued that the bank’s calling up the moneys was unconscionable conduct in contravention of s12CB(1) or s12CC(1) of the ASIC Act and it was argued that it was unfair and unreasonable, in breach of what is said to have been an implied term that the bank should act in that way having regard to the terms of the Code of Banking Practice.  Mr McCall’s argument cited Commonwealth Bank of Australia v Renstel Nominees Pty Ltd,[2] where it was accepted that a bank’s right to cancel an overdraft facility was subject to a requirement that the bank act “reasonably and in good faith”.[3]  The argument also cited Commonwealth Bank of Australia v Spira.[4]  For the bank it was submitted that such terms should not be readily implied, citing the analysis of MuirJ in Kendell v Sweeney & Ors.[5]  And it was argued that this exercise of the bank’s rights was not, in any case, other than in good faith and was not unfair or unreasonable. 

[36] It is unnecessary to resolve those arguments within this judgment.  For present purposes, it is necessary to consider only the case for relief under the ASIC Act relating to the alleged consequences of the bank’s contraventions of that Act in relation to the Market Rate Facility.  One alleged consequence is that Mr McCall became unable to pay the bank what was owed under the other facilities when it became due in late 2009.  His evidence is that were he not now burdened by the Market Rate Facility, he would be able to refinance and pay out the other facilities.  He also swears that he exceeded his limit under the Portfolio Facility only because of the burden of the Market Rate Facility.  Although the evidence is general and not immediately compelling, within this summary judgment application he has raised a sufficient case to the effect that but for the Market Rate Facility, he would have been able to refinance and pay out the bank if and when it exercised its rights to call up the other loans.  Therefore, he alleges, he is worse off in that way, by being unable to pay what is due and by being susceptible to the exercise of the bank’s powers upon his default. 

[37] There is a wide range of remedies which are potentially relevant here should Mr McCall establish his case that he should not have entered into the Market Rate Facility.  Section 12GD(1) of the ASIC Act provides that if the Court is satisfied that a person has engaged in conduct in contravention of a provision of Division 2, the Court may grant an injunction in such terms as it determines to be appropriate.  Section 12GM of the ASIC Act is the analogue of s87 of the TPA.  In empowers the Court to make orders to the end of compensating a person who has suffered loss or damage from a contravention of that Division as well as orders which would prevent or reduce the loss or damage suffered, or which is likely to be suffered, by that contravention.

[38] On Mr McCall’s case, he has suffered or is likely to suffer loss in several ways, but relevantly here, by being unable to pay what is owing under the Portfolio and Home Loan Facilities.  That alleged loss or damage, he says, would have particular consequences for him because he has mortgaged his property to secure those debts.  He says that to prevent or reduce that loss or damage, he will need relief which not only effectively sets aside the Market Rate Facility, but which also prevents the bank from requiring him to immediately pay that which he cannot pay by reason of the bank’s wrongdoing.  He does not seek orders which would permanently preclude the bank from enforcing the other facilities.  Within his counterclaim he seeks orders that the bank be prevented from enforcing the facilities only until he is restored to the position in which he would have been if the alleged contraventions had not occurred.[6]  In my view, that is relief which is and should remain potentially available to him.  For example, were he to prove his case at a trial, the Court might be persuaded not to enter a judgment on the plaintiff’s claim for a certain period in order to permit Mr McCall to refinance the other facilities, because the alternative of a judgment in the bank’s favour with a short stay of that judgment might be shown to affect his ability to refinance.  If the bank were now given the summary judgment which it seeks, the availability of that relief, or at least its practical utility, could be lost.

[39] Therefore, in my view, the bank has failed to establish that Mr McCall has no real prospect of successfully defending all or part of its claim and that there is no need for a trial. 

[40] For the bank it was argued that the summary judgment application is governed by the principles from Inglis v Commonwealth Trading Bank of Australia[7] and in particular the statement by Walsh J[8] that:

“The benefit of having security for a debt would be greatly diminished if the fact that a debtor has raised claims for damages against the mortgagee were allowed to prevent any enforcement of the security until after the litigation of those claims had been completed.”

In Inglis, Barwick CJ expressed the general rule that when it is sought to restrain the exercise by a mortgagee of its rights under the mortgage instrument, no restraint should be placed on the mortgagee failing a payment into court of the amount sworn by the mortgagee to be due and owing.  However, in the present case, there is no application for orders restraining the plaintiff bank.  Rather, it seeks a final judgment, in which the present rights of the parties would be merged.  So far as its interest as a mortgagee is concerned, the bank seeks a final judgment for the recovery of possession of the St Lucia and Gold Coast properties.  The Inglis principle, which affects the Court’s discretionary powers to affect the positions of the parties pending a final determination of their dispute, does not appear to be immediately relevant.  And it is not Mr McCall who presently seeks any order; it is the bank which seeks a final judgment.

[41] For the bank it is argued that the Inglis principle is relevant also in this context, a submission relying upon Clairview Developments Pty Ltd v Law Mortgages Gold Coast Pty Ltd.[9]  In that case, after the transfer of a registered mortgage the mortgagor alleged that the mortgage debt had become effectively reduced by a claim for unliquidated damages which the mortgagor had enjoyed against the original mortgagee.  Upon that basis, the mortgagor lodged a caveat and brought proceedings claiming relief which included an injunction against the new mortgagee, preventing it from exercising its power of sale.  The majority of the Court of Appeal[10] dismissed an appeal from orders removing the caveat and giving summary judgment for the mortgagee, as the defendant to the appellant’s claim.  It was held that summary judgment was correctly given because the mortgagor had no real prospect of succeeding on its claim for an injunction, the reason being that its asserted right to damages could not be set off against the mortgage debt, at least once there had been a registered transfer of the mortgage.  The new mortgagee took only according to the then state of the accounts between its predecessor and the mortgagor and at that point, the account had not been affected by a mere claim for unliquidated damages.  The context there was clearly different from the present one.  Summary judgment was given because the plaintiff there had no cause of action against the defendant mortgagee.  In the present case, the summary judgment application must be determined upon the premise that this mortgagor has a case to be tried against his mortgagee, pursuant to which there is the potential for remedies, specifically under the broad terms of s 12GM of the ASIC Act, which could affect the immediate enforceability of the mortgages.  Accordingly, the reference to the Inglis principle in the majority judgments in that case are not so applicable to the present one, where the requirements of r292 have not been satisfied. 

[42] The application for summary judgment should be dismissed.  I will hear the parties as to costs.

Footnotes

[1] The bank conceding for present purposes that there is a right of set off, contrary to the apparent effect of certain terms of the Portfolio and Home Loan Facilities.

[2] [2001] VSC 167.

[3] Commonwealth Bank of Australia v Renstel Nominees Pty Ltd [2001] VSC 167 at [47] citing amongst others Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 at 255, Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349 and Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151.

[4] (2002) 174 FLR 274; [2002] NSWSC 905.

[5] [2005] QSC 064.

[6] Counterclaim prayer for relief, paragraph 1(e)(iv) and (v).

[7] (1972) 126 CLR 161.

[8] (1972) 126 CLR 161 at 165.

[9] [2007] 2 Qd R 501.

[10] McMurdo P and Jerrard JA.

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Editorial Notes

  • Published Case Name:

    National Australia Bank v McCall

  • Shortened Case Name:

    National Australia Bank v McCall

  • MNC:

    [2011] QSC 25

  • Court:

    QSC

  • Judge(s):

    McMurdo J

  • Date:

    28 Feb 2011

Litigation History

No Litigation History

Appeal Status

No Status