Bank of Western Australia Ltd v Love [2009] NSWSC 1421

Bank of Western Australia Ltd v Love [2009] NSWSC 1421

State Wide gave a satisfactory explanation for its delay, and although the argument that registration alone allowed renewal without the Bank's written consent was wrong, the proposed defence raised arguable issues concerning the effect of the Bank's receipt of rent under the Real Property Act 1900, the benefit and burden principle, and unconscionable conduct. The pleading point under UCPR r 36.8 was hopeless because the Bank had complied with the rule. Because some proposed grounds were at least arguable, State Wide was granted leave to be joined and to file a defence and cross claim, with mediation ordered and costs reserved.

Jurisdiction
Australia
Judgment Date
17 December 2009
Procedural Posture
Possession Proceedings; Notice of Motion for Joinder, Leave to File Defence and Cross Claim, and Setting Aside Default Judgment for Possession / Procedural Ruling on Notice of Motion
Outcome
Leave granted to State Wide Pool Services Pty Ltd to be joined as second defendant and to file a defence and cross claim within 14 days; parties ordered to attend mediation; costs reserved.
Legal Topics
['setting Aside Default Judgment' 'joinder of Defendant' 'mortgagee Possession' 'registered Lease and Option to Renew' 'benefit and Burden Principle' 'unconscionable Conduct' 'possession of Land']
['civil Procedure' 'real Property' 'trade and Commerce'] ['setting Aside Default Judgment' 'joinder of Defendant' 'mortgagee Possession' 'registered Lease and Option to Renew' 'benefit and Burden Principle' 'unconscionable Conduct' 'possession of Land']

Case Brief

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Procedural Posture

Possession Proceedings; Notice of Motion for Joinder, Leave to File Defence and Cross Claim, and Setting Aside Default Judgment for Possession / Procedural Ruling on Notice of Motion

Legal Issues

  1. 1 ['Whether State Wide Pool Services Pty Ltd should be joined as second defendant and granted leave to file a defence and cross claim.' 'Whether a lessee can exercise an option to renew a registered lease when the mortgagee has not given written consent.' "Whether the Bank's receipt of rents under a s 63 notice of the Real Property Act 1900 made it a mortgagee in possession or otherwise bound it to recognise the option to renew." 'Whether the benefit and burden principle arguably bound the Bank to recognise the renewal option.' "Whether the Bank's conduct was arguably unconscionable within the meaning of s 51AA of the Trade Practices Act 1974 (Cth)." 'Whether the default judgment for possession was vulnerable because the lease was not disclosed to the Court when judgment was obtained.']

Ratio Decidendi

State Wide gave a satisfactory explanation for its delay, and although the argument that registration alone allowed renewal without the Bank's written consent was wrong, the proposed defence raised arguable issues concerning the effect of the Bank's receipt of rent under the Real Property Act 1900, the benefit and burden principle, and unconscionable conduct. The pleading point under UCPR r 36.8 was hopeless because the Bank had complied with the rule. Because some proposed grounds were at least arguable, State Wide was granted leave to be joined and to file a defence and cross claim, with mediation ordered and costs reserved.

Court Disposition

Leave granted to State Wide Pool Services Pty Ltd to be joined as second defendant and to file a defence and cross claim within 14 days; parties ordered to attend mediation; costs reserved.

Orders

  • ['Leave is granted to State Wide Pool Services Pty Ltd to be joined as second defendant to the proceedings.' 'Leave is granted to State Wide Services Pty Ltd to file a defence and cross claim within 14 days.' 'The parties are to attend mediation.' 'The matter is listed before the Registrar for directions on...