Swift, D. & Anor v. Westpac Banking Corporation & Anor [1994] FCA 943

JUDGMENT No, wc? 3. 2s

NOT FOR DISTRIBUTION FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES REGISTRY No QG 152 of 1994 GENERAL DIVISION BETWEEN: DORIS SWIFT and ANOTHER Applicant AND: WESTPAC RANKING CORPORATION and ANOTHER Respondent CORAM: § SACKVILLE J. ~7 DEC 1994 PLACE: SYDNEY FEDERAL COURT OF DATE: 21 NOVEMBER 1994 PUSTRALIA REGISTRY REASONS FOR JUDGMENT

HIS HONOUR: This is an application that was commenced in the Queensland District Registry of this Court by the filing of an application accompanied by a statement of claim. Each of these documents was filed on 31 October 1994. In the application the applicants seek declarations that they are entitled to have certain mortgages over land near Rockhampton in Queensland set aside. The application also seeks a declaration that no power of sale has arisen for the benefit of the respondents who are identified in the application as Westpac Banking Corporation as the first respondent and Australian Guarantee Corporation Limited

as the second respondent. Relief is also sought under the

-2- provisions of the Trade Practices Act 1974, including damages.

The application foreshadowed a claim for interlocutory relief, by which the respondents, or either of them, would be restrained from taking any further action in reliance upon the mortgages pending the determination of the proceedings. It appears that the application and statement of claim were served on the solicitors for the first and second respondents on 11 November 1994. It also appears that a receiver was appointed to the property of the applicants and that the receiver attended the property on 14 November 1994. As I understand the position the receiver, Mr Ross Andrew Duss has not yet been added as a party

to the proceedings although he is named in a notice of notion.

The matter came before the Court in Sydney before Lindgren, J on 14 November 1994 at 4 pm. At that point the matter was stood over until 9.15 am on 15 November 1994. On that day, which is Tuesday of last week, it appears that the first and second respondents were represented by a solicitor and gave undertakings