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Westpac Banking Corporation v Woodward[2019] QDC 188

Westpac Banking Corporation v Woodward[2019] QDC 188

[2019] QDC 188

DISTRICT COURT OF QUEENSLAND

JARRO DCJ

BD No 2624 of 2017

WESTPAC BANKING CORPORATION     Plaintiff

AND

WOODWARD and ANOTHER      Defendants

BRISBANE

THURSDAY, 26 SEPTEMBER 2019

JUDGMENT

JARRO DCJ:  By application filed 29 May 2019 the plaintiff, Westpac Banking Corporation (Westpac), applies pursuant to rule 292 of the Uniform Civil Procedure Rules 1999 (UCPR) for judgment to be given against the first and second defendants to enable the plaintiff to recover possession of all the piece of land described as Lot 107 on survey plan 128016, and being the whole of the land contained in title reference 50332207, and known as 14 Viola Drive, Redland Bay in the State of Queensland.  The plaintiff also, in the application, seeks an order for costs on an indemnity basis.

The proceeding concerns the plaintiff seeking recovery of possession of the real property at Redland Bay, mortgaged to Westpac by the defendants, and recovery of the underlying secured debt plus interest and costs.

It is noted that summary judgment is sought for recovery of possession only. 

The proceeding is within the jurisdiction of the District Court, having regard to an annual land valuation notice in evidence. 

The present application for summary judgment on the claim was filed almost four months ago and served the following day.  Since then it has been adjourned twice; on each occasion at the request of the defendants.  The defendants then retained solicitors to act on their behalf in or about late July 2019, however, this morning, those solicitors, being Irish Bentley Lawyers, sought leave to withdraw as solicitors on the record.  I permitted and granted leave to Irish Bentley Solicitors to withdraw because the application concerning the leave to withdraw indicated that the defendants failed to provide timely instructions or provide a necessary letter of engagement.

Late last night, an email was sent by the second defendant to my Associate, the plaintiff’s instructing solicitor, Mr Mitchell Byram, and the first defendant, which I’ve marked exhibit one.  It reads as follows:

“To whom it may concern,

Receiving such late notice that the court date has been pushed forward to tomorrow has taken us by complete surprise, especially considering that we, the defendants, are self-representing.  We received the email notifying us of date change at 3.45 pm today that the summary judgment hearing was moved to 10 am the following day.  We were prepared to go to court on Monday as it was originally planned, and request this proceeding continue as originally planned for Monday because we are unable to attend on such short notice due to work and family commitments.  We ask that should this matter proceed at 10 am then the judge decide the matter on the papers without oral submissions.  We also ask that we receive a detailed judgment from the courts. 

Kind Regards,

Ken and Anna Woodward.”

It is abundantly clear on the material that this application was indeed returnable for today, despite the first and second defendants claiming that the application was returnable on Monday.  There is no evidence whatsoever before me to demonstrate that the application was returnable on Monday.  In any event, it is unclear to me, and I do not read exhibit one to be an application for an adjournment, but nonetheless, the defendants were put on notice that the application for summary judgment would proceed today.

Dealing with the application, for the reasons to follow, I am satisfied the plaintiff should have summary judgment for recovery of possession of the property. 

In essence, the defendants have no real prospect of successfully defending the claim, and there is no need for a trial. 

This proceeding has been on foot for over two years for reasons to be expanded in a moment, and despite the defendants having produced three versions of the defence, it is evident that there is no tenable ground of defence.

On 17 July 2017 the plaintiff’s claim and statement of claim was filed in the Brisbane Registry of the Court. 

On 28 August 2017 the first and second defendants defence was filed. 

On 8 November 2018 the first and second defendant’s application without oral hearing for an order for discovery was filed. 

On 16 November 2018 the plaintiff’s notice requiring oral hearing of the plaintiff’s application filed on 8 November 2018 was filed. 

On 10 December 2018 the plaintiff’s amended statement of claim was filed. 

On 30 January 2019 the plaintiff’s application for orders striking out the defence of the first and second defendants was filed. 

On 18 February 2019 the amended defence of the first and second defendants was filed. 

On 19 February 2019 the amended application of the plaintiff for orders striking out the amended defence of the first and second defendants was filed.  On that day his Honour Judge McGill SC made orders, among other things, striking out parts of the amended defence, and allowing the first and second defendants until 19 March 2019 to file a further amended defence, and dismissing the first and second defendant’s application for an order for discovery. 

On 29 April 2019, despite the order made by his Honour Judge McGill SC, the second amended defence of the first and second defendants was filed. 

In addition to the second amended defence of the first and second defendants, the defendants delivered a notice to admit facts on 29 April 2019. 

I note the plaintiff delivered a response on 13 May 2019.  The plaintiff then also filed a reply to the amended defence, then subsequently this application was filed on 29 May 2019. 

It is clear, from the above procedural history, the litigation and the proceedings demonstrate that the defendants have had a period of over two years to formulate their defence, such that the current defence should be regarded as the best case the defendants can advance in opposition of the claim.  I am of the view that the defendants have thus far engaged in a pattern of conduct designed to frustrate or delay the enforcement of the mortgage by raising untenable points and distractions, rather than genuine grounds of defence, and the defendants have been on notice of the present application for some time.

I note too that a sequestration order was made in respect of the first defendant on 19 April 2019.  Accordingly, the plaintiff’s claim in debt against the first defendant may no longer be pursued by application of section 58(3)(b) of the Bankruptcy Act 1966.  As a mortgagee, however, the plaintiff may continue to pursue recovery of possession of the property as against the first defendant, pursuant to the mortgage, for the plaintiff’s right to realise its security is unaffected by the bankruptcy. See section 58, subsection (5) of the Bankruptcy Act 1966, and the definition of secured creditor in section 5.

I have considered the amended statement of claim, as well as the latest reincarnation of the first and second defendant’s amended defence; that being the second amended defence, and I have also considered the reply that has been filed in the proceedings as well as noting to the notice to admit facts, and the response that was given in respect to the notice to admit facts.

I am satisfied that the plaintiff has proved its case to the extent not otherwise admitted.  In particular, I note the material filed in support of the application identifies the following matters: 

  1. (a)
    a true copy of the original loan facility agreement is in evidence; 
  1. (b)
    the allocated account number was 037160704049; 
  1. (c)
    the existence of the mortgage over the property entered into on the same date as the facility agreement is admitted; 
  1. (d)
    a true copy of the original mortgage is in evidence;
  1. (e)
    bank statements for the relevant account show that there has been no deposit into the account by way of reduction of the debit balance of the loan facility since 10 October 2016; 
  1. (f)
    the defendants are in default of repayment under the facility agreement, and the mortgage; and
  1. (g)
    a representative of Westpac has certified, pursuant to clause E4 of the terms of the mortgage, that as at 23 September 2019 no repayments have been made since 10 October 2016, and the amount payable by the defendants is $794,421.71, including arrears of $220,720.13, and the defendants have been served requisite notices by way of precursor to the enforcement of the mortgage.

Once an applicant for summary judgment makes out a prima facie case the evidentiary owner shifts to the respondent. See LCR Mining Group Proprietary Limited v Ocean Tyres Pty Ltd [2011] QCA 105 at [22] applying Queensland Pork Proprietary Limited v Lott [2003] QCA 271 at [41].

In relation to the defendant’s current defence, and the material filed by the defendants, I conclude that the defendants have not adduced any evidence to the contrary to not entitle the plaintiff to the relief it seeks.  It seems to me the defence advances one positive ground, namely that an alleged accord and satisfaction was entered into on 8 March 2019 (see paragraphs 19 and 20 of the second amended defence).  In the reply the plaintiff has denied this allegation.  There is no evidence of the alleged accord.  The defendants appear to allege that payment was made by way of satisfaction in the sum of $766,329.68, however, there is no evidence of this either. 

The defendants rely upon a lengthy and nonsensical judgment, document provided to the plaintiff on or about 25 March 2019.  I have considered this document, and in my view, this document does not evidence any payment.

In addition, I prefer the evidence that has been filed by the plaintiff, namely the affidavit of Donna Stathi, sworn 22 May 2019 at paragraph 22 – in respect to the purported remittance advice, however, no such transfer has ever been made by or received by the plaintiff, and indeed the plaintiff has not received any payment in reduction of the debit balance of the loan facility since 10 October 2016.

It therefore follows that the defendants have no real prospect of successfully defending the claim, and there is no need for a trial such that summary judgment should be entered in favour of the plaintiff, pursuant to rule 292 of the UCPR. 

The orders of the court therefore will be, and consistent with the authority of Pioneer Australia Proprietary Limited v Quinn [2019] QSC 82, especially at [15], that: 

  1. (1)
    the plaintiff recover, as against the first and second defendants, possession of the land described as Lot 107 on survey plan 128016, and being the whole of the land contained in title reference 50332207, and known as 14 Viola Drive, Redland Bay in the State of Queensland;  and
  1. (2)
    the plaintiff’s costs of and incidental to the application be treated as reasonable enforcement expenses under its mortgage number 714340172 over the property, and are to be payable from the proceeds of sale of the property on the indemnity basis pursuant to clause B1(b) of the mortgage. 

I have therefore initialled the draft order and placed it on the file with these reasons.

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Editorial Notes

  • Published Case Name:

    Westpac Banking Corporation v Woodward

  • Shortened Case Name:

    Westpac Banking Corporation v Woodward

  • MNC:

    [2019] QDC 188

  • Court:

    QDC

  • Judge(s):

    Jarro DCJ

  • Date:

    26 Sep 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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