Westpac Banking Corporation v Corry and Anor [2011] NSWSC 1014

Westpac Banking Corporation v Corry and Anor [2011] NSWSC 1014

The Defendants admitted default and did not dispute the mortgage and demands. Their proposed defence relied on representations allegedly made in and after 2006, but the Plaintiff's claim for possession was founded on the mortgage entered into and registered in 2003, and the alleged later representations did not provide an arguable basis to impugn that mortgage. Any arguable claim by the Defendants was at best a claim for damages, and a set-off or cross-claim was not a defence to possession. Applying the stringent summary judgment test, the Plaintiff was entitled to judgment for possession, but the Cross-Claim was not shown to be so flawed as to warrant dismissal or striking out.

Jurisdiction
Australia
Judgment Date
02 September 2011
Procedural Posture
Mortgagee's Claim for Possession of Land / Plaintiff's Notice of Motion for Summary Judgment Under Rule 13.1 UCPR or Alternatively Default Judgment Under Rule 16.4 Ucpr, and Application to Dismiss or Strike Out Cross Claim
Outcome
Summary judgment granted to the Plaintiff for possession of the Norong property; leave granted to issue a writ of possession; dismissal or striking out of the Cross-Claim declined; parties to be heard on stay and costs.
Legal Topics
['possession of Land' 'mortgage Default' 'summary Judgment' 'cross Claim' 'misleading and Deceptive Conduct' 'unconscionable Conduct']
['mortgages' 'civil Procedure' 'consumer Law'] ['possession of Land' 'mortgage Default' 'summary Judgment' 'cross Claim' 'misleading and Deceptive Conduct' 'unconscionable Conduct']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Mortgagee's Claim for Possession of Land / Plaintiff's Notice of Motion for Summary Judgment Under Rule 13.1 UCPR or Alternatively Default Judgment Under Rule 16.4 Ucpr, and Application to Dismiss or Strike Out Cross Claim

Legal Issues

  1. 1 ['Whether the Plaintiff should be granted summary judgment for possession of the Norong property.' 'Whether the Defendants had an arguable defence to the claim for possession based on alleged misleading and deceptive conduct or unconscionable conduct occurring after the mortgage was entered into.' 'Whether the Cross-Claim filed 25 July 2011 should be dismissed or struck out.']

Ratio Decidendi

The Defendants admitted default and did not dispute the mortgage and demands. Their proposed defence relied on representations allegedly made in and after 2006, but the Plaintiff's claim for possession was founded on the mortgage entered into and registered in 2003, and the alleged later representations did not provide an arguable basis to impugn that mortgage. Any arguable claim by the Defendants was at best a claim for damages, and a set-off or cross-claim was not a defence to possession. Applying the stringent summary judgment test, the Plaintiff was entitled to judgment for possession, but the Cross-Claim was not shown to be so flawed as to warrant dismissal or striking out.

Court Disposition

Summary judgment granted to the Plaintiff for possession of the Norong property; leave granted to issue a writ of possession; dismissal or striking out of the Cross-Claim declined; parties to be heard on stay and costs.

Orders

  • ['Judgment for the Plaintiff against the Defendants for possession of the land comprised in Certificate of Title Folio Identifier XXX being all of the land situate at and known as XXX Road, Norong, New South Wales.' 'Leave granted to the Plaintiff to issue a writ of possession in relation to the property known as...