Westpac Banking Corporation -v- Tony Barber [2015] NSWSC 1606

Westpac Banking Corporation -v- Tony Barber [2015] NSWSC 1606

Mr Barber failed to establish any defence to the Bank's claim because the Court was satisfied that the false income information emanated from him and he no longer asserted that the Bank knew it was false or participated in dishonest behaviour. His cross-claim failed because there was no admissible evidence establishing the market value of the Property at the date of sale or settlement, and therefore no evidence that the sale price did not reflect market value or that he suffered loss. The Bank was entitled to judgment for the admitted debt, dismissal of the cross-claim, and indemnity costs.

Jurisdiction
Australia
Judgment Date
13 October 2015
Procedural Posture
Banking Debt Claim and Cross Claim Concerning Mortgagee Sale / Principal Judgment After Hearing
Outcome
Judgment for plaintiff; cross-claim dismissed; indemnity costs awarded to the plaintiff.
Legal Topics
['loan Debt Recovery' 'false Information in Loan Application' 'mortgagee in Possession Power of Sale' 'equitable Set Off' 'indemnity Costs']
['banking' 'equity' 'commercial List' 'mortgage Law' 'costs'] ['loan Debt Recovery' 'false Information in Loan Application' 'mortgagee in Possession Power of Sale' 'equitable Set Off' 'indemnity Costs']

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Procedural Posture

Banking Debt Claim and Cross Claim Concerning Mortgagee Sale / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether Mr Barber established a defence to the Bank's claim for the admitted loan and cheque account debt on the basis that false information was provided to the Bank without his knowledge or consent." 'Whether the Bank knew of or participated in any dishonest provision of false information in support of the loan application.' 'Whether Mr Barber established his cross-claim that the Bank breached obligations in exercising its power of sale as mortgagee by selling the Property at an undervalue.' 'Whether the Bank was entitled to indemnity costs.']

Ratio Decidendi

Mr Barber failed to establish any defence to the Bank's claim because the Court was satisfied that the false income information emanated from him and he no longer asserted that the Bank knew it was false or participated in dishonest behaviour. His cross-claim failed because there was no admissible evidence establishing the market value of the Property at the date of sale or settlement, and therefore no evidence that the sale price did not reflect market value or that he suffered loss. The Bank was entitled to judgment for the admitted debt, dismissal of the cross-claim, and indemnity costs.

Court Disposition

Judgment for plaintiff; cross-claim dismissed; indemnity costs awarded to the plaintiff.

Orders

  • ['Judgment for the plaintiff against the defendant in the amount claimed.' "The defendant's cross-claim is dismissed." 'The plaintiff is entitled to indemnity costs.' 'The papers are to be referred to the Law Society.' 'The exhibits are to be retained for 28 days and thereafter may be returned.']