Bank of Western Australia Limited v Coppola and Anor (No. 2) [2012] NSWSC 1495

Bank of Western Australia Limited v Coppola and Anor (No. 2) [2012] NSWSC 1495

The Plaintiff and the Registrar General established a very clear case for summary relief. Maria Coppola was precluded by the consent judgment from impugning the Home Loan Facility Agreement or the Concord mortgage, and her Cross-Claim was barred or an abuse of process. Elio Coppola was bound by documents executed by Vanessa Coppola under his registered Power of Attorney; the Plaintiff's registered mortgages were indefeasible; no fraud was brought home to the Plaintiff or its agents; defaults had occurred; and s.129(2)(l) Real Property Act 1900 barred Elio Coppola's pleaded claim against the Registrar General. Accordingly, there was no real question to be tried.

Jurisdiction
Australia
Judgment Date
06 December 2012
Procedural Posture
Mortgage Proceedings for Possession of Land and Monetary Judgment, With Cross Claims Against the Plaintiff and Registrar General / Interlocutory Applications for Summary Judgment, Striking Out of Defence, and Summary Dismissal or Striking Out of Cross Claims
Outcome
Plaintiff granted summary relief; Cross-Claims against the Plaintiff and the Registrar General summarily dismissed; costs awarded to the Plaintiff and the Registrar General against Elio Coppola and Maria Coppola.
Legal Topics
['mortgage Default' 'possession of Land' 'debt Judgment' 'summary Judgment' 'summary Dismissal' 'cross Claims' 'res Judicata' 'anshun Estoppel' 'abuse of Process' 'power of Attorney' 'indefeasibility of Title' 'torrens Assurance Fund' 'fraud Exception']
['mortgages' 'real Property' 'civil Procedure' 'evidence'] ['mortgage Default' 'possession of Land' 'debt Judgment' 'summary Judgment' 'summary Dismissal' 'cross Claims' 'res Judicata' 'anshun Estoppel' 'abuse of Process' 'power of Attorney' 'indefeasibility of Title' 'torrens Assurance Fund' 'fraud Exception']

Case Brief

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Procedural Posture

Mortgage Proceedings for Possession of Land and Monetary Judgment, With Cross Claims Against the Plaintiff and Registrar General / Interlocutory Applications for Summary Judgment, Striking Out of Defence, and Summary Dismissal or Striking Out of Cross Claims

Legal Issues

  1. 1 ['Whether the Plaintiff was entitled to strike out the Defence to the Further Amended Statement of Claim and obtain judgment against Elio Coppola.' 'Whether the Plaintiff was entitled to enforce the consent judgment already entered against Maria Coppola.' 'Whether the Cross-Claims by Elio Coppola and Maria Coppola against the Plaintiff and the Registrar General should be summarily dismissed or struck out.' 'Whether Maria Coppola was precluded by res judicata, Anshun estoppel or abuse of process from maintaining her Cross-Claim.' "Whether Vanessa Coppola signed the loan and mortgage documents within authority conferred by Elio Coppola's registered Power of Attorney." "Whether the Plaintiff's registered mortgages were protected by indefeasibility of title and whether the fraud exception was available." "Whether s.129(2)(l) Real Property Act 1900 barred Elio Coppola's claim for compensation from the Torrens Assurance Fund."]

Ratio Decidendi

The Plaintiff and the Registrar General established a very clear case for summary relief. Maria Coppola was precluded by the consent judgment from impugning the Home Loan Facility Agreement or the Concord mortgage, and her Cross-Claim was barred or an abuse of process. Elio Coppola was bound by documents executed by Vanessa Coppola under his registered Power of Attorney; the Plaintiff's registered mortgages were indefeasible; no fraud was brought home to the Plaintiff or its agents; defaults had occurred; and s.129(2)(l) Real Property Act 1900 barred Elio Coppola's pleaded claim against the Registrar General. Accordingly, there was no real question to be tried.

Court Disposition

Plaintiff granted summary relief; Cross-Claims against the Plaintiff and the Registrar General summarily dismissed; costs awarded to the Plaintiff and the Registrar General against Elio Coppola and Maria Coppola.

Orders

  • ['The Defence to the Further Amended Statement of Claim filed on 17 January 2011 is to be struck out and judgment entered for the Plaintiff against Elio Coppola.' 'The Plaintiff is entitled to enforce the judgment already entered against Maria Coppola.' 'The Cross-Claims brought by Elio Coppola and Maria Coppola...