Westpac Banking Corporation v Clayton [2012] NSWSC 283

Westpac Banking Corporation v Clayton [2012] NSWSC 283

The plaintiff having made proper demands under the relevant facility agreements and mortgages, and the defendants being in default without substantiating any pleaded defence by evidence, the plaintiff is entitled to judgment for possession of the subject properties and recovery of the outstanding debts pursuant to the mortgage and guarantee instruments.

Parties
Plaintiff: Westpac Banking Corporation; First Defendant: Erwin John Clayton; Second Defendant: Mary Patricia Clayton
Jurisdiction
Australia
Judgment Date
16 April 2012
Procedural Posture
Civil / Final Judgment After Hearing Principal Claim and Cross Claim
Outcome
Judgment for the plaintiff for possession, monetary judgment, and costs; cross-claim dismissed.
Legal Topics
Mortgage Default, Enforcement of Securities, Possession of Land, Guarantee Liability, Unconscionable Conduct (alleged)
Real Property Banking and Finance Mortgage Default Enforcement of Securities Possession of Land Guarantee Liability Unconscionable Conduct (alleged)

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Parties

Westpac Banking Corporation

Plaintiff

Erwin John Clayton

First Defendant

Mary Patricia Clayton

Second Defendant

Procedural Posture

Civil / Final Judgment After Hearing Principal Claim and Cross Claim

Legal Issues

  1. 1 Whether the plaintiff is entitled to possession of the mortgaged properties following default
  2. 2 Whether the plaintiff is entitled to monetary judgment against the first and second defendants
  3. 3 Whether the guarantee provided by the second defendant is enforceable

Ratio Decidendi

The plaintiff having made proper demands under the relevant facility agreements and mortgages, and the defendants being in default without substantiating any pleaded defence by evidence, the plaintiff is entitled to judgment for possession of the subject properties and recovery of the outstanding debts pursuant to the mortgage and guarantee instruments.

Court Disposition

Judgment for the plaintiff for possession, monetary judgment, and costs; cross-claim dismissed.

Orders

  • Judgment for possession of specified properties in favour of the plaintiff against the defendants.
  • Judgment for the plaintiff against the first defendant for $2,580,445.40 as at 2 April 2012.