Walker v Westpac Banking Corporation (ARBN 007 457 141) [2001] FCA 746

FEDERAL COURT OF AUSTRALIA

Walker v Westpac Banking Corporation (ARBN 007 457 141) [2001] FCA 746

KELL WALKER v WESTPAC BANKING CORPORATION Q 114 OF 2001

DRUMMOND J 12 JUNE 2001 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 114 OF 2001

BETWEEN: KELL WALKER

APPLICANT

AND: WESTPAC BANKING CORPORATION (ARBN 007 457 141)

RESPONDENT

JUDGE: DRUMMOND J

DATE OF ORDER: 12 JUNE 2001

WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. The applicant's proceeding be dismissed.

2. The applicant pay the respondent's costs of and incidental to the proceedings.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 114 OF 2001

BETWEEN: KELL WALKER

APPLICANT

AND: WESTPAC BANKING CORPORATION (ARBN 007 457 141)

RESPONDENT

JUDGE: DRUMMOND J

DATE: 12 JUNE 2001

PLACE: BRISBANE

REASONS FOR JUDGMENT

1 Mr Walker has commenced an action in this Court against Westpac Banking Corporation claiming possession of a property at 15 Young Street, Southport and another property at 41 Helensvale Road, Helensvale. He seeks interlocutory relief, in effect, restraining Westpac from taking further action with respect to obtaining possession of both properties until the present action is determined. The bank, by a notice of motion, seeks an order pursuant to O 20 r 2 the Federal Court Rules permanently staying or dismissing Mr Walker's action. It is appropriate to deal with the notice of motion first. 2 The registered proprietor of both properties is a Ms Tan. She granted a mortgage over each to Westpac in January 1998. Mr Walker is Ms Tan's husband. After the mortgages were registered, he took a lease over each property from his wife. She went into default under both mortgages in April 1999. The total amount of her indebtedness secured by the mortgages was then well in excess of $1,000,000. The relevant sequence of events in relation to the Helensvale property is set out by Mr Meager in his affidavit of 30 May 2001; there is no challenge to the accuracy of what is there deposed to. 3 In April 2000, the bank commenced Supreme Court proceedings for possession of 41 Helensvale Road. In September 2000, Mullins J of that Court granted summary judgment in favour of the bank against Ms Tan. She filed a notice of appeal in October and a little while later, on the bank's application, a warrant for possession by the bank of the Helensvale Road property was issued. Ms Tan's response, in December 2000, was to apply for a stay of enforcement of the order for possession obtained by the bank under its summary judgment. 4 The stay application was dismissed in the Supreme Court on 14 December 2000. The next thing that happened was that claims were made by Mr Walker and a company with which he was involved, on the basis of them being lessees of the Helensvale Road property. In March 2001, Chesterman J in the Supreme Court dealt with these claims by Mr Walker and the company, and gave leave to the bank to issue an enforcement warrant directed to both Mr Walker and the company I have referred to, in relation to possession of the 41 Helensvale Road property as against them. On 15 March 2001, an enforcement warrant for possession directed to Ms Tan, Mr Walker, and the company, was issued out of the Supreme Court and, a few days later, the sheriff delivered up possession of that property to the bank. In May, Ms Tan's appeal against the summary judgment for possession which the bank obtained against her back in September 2000 was dismissed. 5 So far as the other property - 15 Young Street - is concerned, the bank commenced proceedings in the Supreme Court in February of this year for possession of this property as against Ms Tan. Upon Mr Walker and the company with which he is associated, and to which I have already referred, claiming rights as lessees in respect of the property, subsequent to the commencement of proceedings by the bank for possession against Ms Tan, the bank joined Mr Walker and the company as defendants in the proceedings it had brought against Ms Tan in relation to 15 Young Street. 6 In April of this year, Mr Walker made application to the Supreme Court to transfer the proceedings in that Court into this Court. On 23 April, Moynihan J dismissed the transfer application. Immediately afterwards, the bank filed an application for summary judgment against Ms Tan and Mr Walker. That matter ultimately came on for determination before Mullins J on 22 May last and her Honour gave summary judgment in favour of the bank against Ms Tan with the latter's consent. Mullins J also then granted the bank summary judgment of the Young Street premises as against Mr Walker. Mullins J ordered that the enforcement orders she then made were to be stayed until 6 July 2001. The foundation for the summary judgments in favour of the bank for possession of both premises was that under relevant Queensland statutory law, as their Honours observed, the bank would only have been bound by the leases upon which Mr Walker relied if it had consented to them being granted, the mortgages having been registered prior to the grant of the leases. Their Honours based summary judgment in both cases on the proposition that there was no basis for thinking that Mr Walker might be able to show that he had the bank's consent to the grant of the leases to him. 7 Mr Walker's contention is that the judgments for possession made against Ms Tan and himself in respect of both the Helensvale Road property and the Young Street property were made without jurisdiction, because he contended before those various orders were made that he wished to rely upon certain claims under federal law in respect of which only this Court has jurisdiction, and that the orders for possession subsequently made in the Supreme Court were therefore made without jurisdiction. The foundation for the action brought in this Court is the same. Mr Walker again contends that there are claims which, if well founded, would defeat the bank's entitlement to possession of both premises, which he wishes to make under federal law. He says they are claims which are within the exclusive jurisdiction of this Court. 8 There are a number of problems with Mr Walker's submission. Firstly, it is settled law that the decision of a superior court, such as the Supreme Court of Queensland, even if in excess of jurisdiction is, at worst, voidable and is valid unless and until it is set aside. See Cameron v Cole (1944) 68 CLR 571 at 590. The orders for possession affecting Mr Walker that have been made in the Supreme Court in respect of both properties have never been successfully challenged by him on appeal. They therefore remain of full force and effect, even if it be the case that they were made without jurisdiction because Mr Walker has a good claim under federal law which answers the bank's entitlement and which can only be brought in the Federal Court. 9 It was said in argument that even if that be so, it may be open to Mr Walker at this late stage, nevertheless, to obtain an injunction in this Court to vindicate, or at least to protect until final determination of the action brought by Mr Walker in this Court, the claims he makes to possession as against the bank. It was said that an interlocutory injunction could not be issued by this Court to restrain the bank from proceeding further with respect to its claims for possession to both properties. 10 A difficulty in relation to Helensvale is that the bank has already gone into possession, although it has not yet gone into possession of Young Street. Be that as it may, the fundamental difficulties Mr Walker faced both in all the proceedings in the Supreme Court before Chesterman, Moynihan and Mullins JJ, and in the proceedings today before me, is that he has never attempted to go beyond asserting that there are claims he can make under Federal law, which are within the exclusive jurisdiction of this Court to determine. He has never gone so far as to put evidence on to indicate that he has an arguable case in respect of any such claims. Moreover, as I understand things, in the Supreme Court he contented himself merely with asserting that he had claims under various Federal statutes which can only be brought in this Court. He did not even descend to identifying the particular provisions of the various federal statutes that he wanted to rely upon, let alone go into evidence to show that he might have an arguable case in respect of any such claims. 11 Chesterman J, in giving judgment for possession against Mr Walker, said this in relation to the assertion that there were claims Mr Walker had which went to answer the bank's claim for possession, but which were within the exclusive jurisdiction of this Court: