Westpac Banking Corporation v Allerton [2016] NSWSC 1076

Westpac Banking Corporation v Allerton [2016] NSWSC 1076

Mr Allerton made a deliberate, advised decision to abandon his positive defences and cross-claim, and neither speculative possible tax-refund funding nor Westpac's late affidavit and Dobbs Certificate justified an adjournment or withdrawal from that position. Westpac's electronic records and certificate under cl H5 were sufficient evidence of the amount owing unless proved wrong, and Mr Allerton did not prove that the certificate was wrong, that Westpac failed to credit the sale proceeds, or that the claimed enforcement costs were unreasonable. Westpac was therefore entitled to judgment for the certified amount and indemnity costs.

Jurisdiction
Australia
Judgment Date
08 August 2016
Procedural Posture
Commercial List Summons for Amounts Claimed Under Guarantees and Cross Claim / Principal Judgment Following Hearing; Notice of Motion for Adjournment Refused
Outcome
Judgment for the plaintiff against the second defendant; cross-claim dismissed; indemnity costs ordered.
Legal Topics
['adjournment of Proceedings' 'withdrawal of Admissions' 'dobbs Certificate' 'banker and Customer Authority to Debit Account' 'guarantee Enforcement' 'indemnity Costs']
['banking and Finance' 'civil Procedure' 'evidence' 'costs' 'guarantees and Indemnities'] ['adjournment of Proceedings' 'withdrawal of Admissions' 'dobbs Certificate' 'banker and Customer Authority to Debit Account' 'guarantee Enforcement' 'indemnity Costs']

Case Brief

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Procedural Posture

Commercial List Summons for Amounts Claimed Under Guarantees and Cross Claim / Principal Judgment Following Hearing; Notice of Motion for Adjournment Refused

Legal Issues

  1. 1 ['Whether the proceedings should be adjourned and the second defendant permitted to pursue defences and a cross-claim previously abandoned.' 'Whether Westpac proved the amount owing under the Guarantee by electronic records and a certificate under cl H5 of the Memorandum of Common Provisions.' "Whether Westpac failed to give credit for sale proceeds recovered from secured property or debited Vimol's accounts without authority." "Whether the Dobbs Certificate was unreliable because it was prepared from Westpac's electronic records." 'Whether Westpac was entitled to indemnity costs and recovery expenses.']

Ratio Decidendi

Mr Allerton made a deliberate, advised decision to abandon his positive defences and cross-claim, and neither speculative possible tax-refund funding nor Westpac's late affidavit and Dobbs Certificate justified an adjournment or withdrawal from that position. Westpac's electronic records and certificate under cl H5 were sufficient evidence of the amount owing unless proved wrong, and Mr Allerton did not prove that the certificate was wrong, that Westpac failed to credit the sale proceeds, or that the claimed enforcement costs were unreasonable. Westpac was therefore entitled to judgment for the certified amount and indemnity costs.

Court Disposition

Judgment for the plaintiff against the second defendant; cross-claim dismissed; indemnity costs ordered.

Orders

  • ['Judgment for the plaintiff against the second defendant for the sum of $1,249,424.82 (the Judgment Amount).' 'The second defendant pay interest on the Judgment Amount from the date of judgment up to the date of payment in accordance with s 101 of the Civil Procedure Act 2005 (NSW).' "The cross-claimant's/second...