Westpac Banking Corporation v Kekatos [2014] NSWSC 1802

Westpac Banking Corporation v Kekatos [2014] NSWSC 1802

Judgment was entered against the third defendant because he did not oppose the order and his defence admitted the contracts and debts except for a bare assertion of no indebtedness. Summary judgment and possession against the first defendant were refused because her defence and cross-claim were not hopeless: if she proved she did not sign the Perpetual mortgage discharged by the plaintiff's advance, a trial judge could find that she did not obtain the relevant benefit and that principles from Trimarchi and Tannous could affect relief, including as to the principal sum. The strike-out applications were refused because the further amended defence and amended cross-claim disclosed a...

Jurisdiction
Australia
Judgment Date
19 December 2014
Procedural Posture
Civil Law Proceedings Concerning Loans, Guarantees and Registered Mortgage Security / Interlocutory Applications for Summary Judgment, Possession of Land, and Strike Out of Amended Defence and Cross Claim
Outcome
Judgment for the plaintiff against the third defendant; applications for summary judgment against the first defendant, possession of land, and strike out of the amended defence and amended cross-claim refused; first defendant granted leave to file a further amended grounds of defence; costs orders made.
Legal Topics
['summary Judgment' 'possession of Land by Mortgagee' 'registered Mortgage Security' 'contracts Review Act Relief' 'unconscionability' 'strike Out of Pleadings' 'discharge of Pre Existing Mortgage']
['civil Law' 'banking and Finance' 'mortgages' 'equity' 'procedure'] ['summary Judgment' 'possession of Land by Mortgagee' 'registered Mortgage Security' 'contracts Review Act Relief' 'unconscionability' 'strike Out of Pleadings' 'discharge of Pre Existing Mortgage']

Case Brief

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Procedural Posture

Civil Law Proceedings Concerning Loans, Guarantees and Registered Mortgage Security / Interlocutory Applications for Summary Judgment, Possession of Land, and Strike Out of Amended Defence and Cross Claim

Legal Issues

  1. 1 ['Whether the plaintiff should have summary judgment against the first defendant for money allegedly owing under loan facilities secured by registered mortgage.' 'Whether the plaintiff should obtain possession of land in folio identifier 5/16538.' "Whether the first defendant's amended defence and amended cross-claim should be struck out." 'Whether the first defendant had an arguable case that relief under the Contracts Review Act 1980 (NSW), Trade Practices Act 1974 (Cth), Competition and Consumer Act 2010 (Cth) Schedule 2-The Australian Consumer Law, or equity could affect enforceability of the facilities and mortgage, including because the funds discharged a Perpetual mortgage she said she did not sign.' 'Whether judgment should be entered against the third defendant where he did not oppose the order sought and his defence disclosed no substantive answer to the debt.']

Ratio Decidendi

Judgment was entered against the third defendant because he did not oppose the order and his defence admitted the contracts and debts except for a bare assertion of no indebtedness. Summary judgment and possession against the first defendant were refused because her defence and cross-claim were not hopeless: if she proved she did not sign the Perpetual mortgage discharged by the plaintiff's advance, a trial judge could find that she did not obtain the relevant benefit and that principles from Trimarchi and Tannous could affect relief, including as to the principal sum. The strike-out applications were refused because the further amended defence and amended cross-claim disclosed a...

Court Disposition

Judgment for the plaintiff against the third defendant; applications for summary judgment against the first defendant, possession of land, and strike out of the amended defence and amended cross-claim refused; first defendant granted leave to file a further amended grounds of defence; costs orders made.

Orders

  • ['Judgment for the plaintiff against the third defendant in the sum of $19,326,288.75.' "The third defendant is to pay the plaintiff's costs of the proceedings and the costs of and incidental to the notice of motion." 'The application for summary judgment against the first defendant is refused.' 'The application for...