Westpac Banking Corporation v Paterson [2001] FCA 1630

FEDERAL COURT OF AUSTRALIA

Westpac Banking Corporation v Paterson [2001] FCA 1630

WESTPAC BANKING CORPORATION v JONNIE MACLEAN STIRLING PATERSON N897 of 2001 BRANSON, MANSFIELD and KATZ JJ SYDNEY 21 NOVEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N897 of 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: WESTPAC BANKING CORPORATION

APPELLANT

AND: JONNIE MACLEAN STIRLING PATERSON

RESPONDENT

JUDGES: BRANSON, MANSFIELD & KATZ JJ

DATE OF ORDER: 5 NOVEMBER 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The declaration and orders made by the primary judge on 14 May 2001 be set aside and in lieu thereof it be ordered that: (a) the amended cross-claim, in so far as it is made by the second cross-claimant, be dismissed; and (b) the second cross-claimant pay the cross-respondent's costs of the proceeding. 3. The respondent pay the appellant's costs of the appeal.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N897 of 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: WESTPAC BANKING CORPORATION

APPELLANT

AND: JONNIE MACLEAN STIRLING PATERSON

RESPONDENT

JUDGES: BRANSON, MANSFIELD & KATZ JJ

DATE: 21 NOVEMBER 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT

THE COURT

INTRODUCTION 1 This is an appeal from a declaration made by a judge of the Court that a "mortgage and loan agreement" in respect of a certain property in New South Wales "between the Applicant/Cross Respondent and the Second Respondent/Cross Claimant in this matter" was void ab initio and from a consequential order for costs. 2 When the appeal was called for hearing on 5 November 2001 the appellant appeared by counsel but the respondent to the appeal (the second respondent and second cross-claimant at first instance) did not appear. Mr de Robillard, formerly of counsel, advised the Court that the respondent had asked him to appear on her behalf on the appeal (as he had before the trial judge) but that he was unable to do so as he did not presently hold a practising certificate. Mr de Robillard advised the Court that the respondent was unable personally to attend the hearing as she had not arranged to take leave from her employment. 3 Mr de Robillard offered to hand to the Court written submissions prepared by him together with certain copy documents. However, as Mr de Robillard did not purport to be acting on behalf of the respondent, and as the documents which Mr de Robillard offered to hand to the Court had not, as we were told, been seen or approved by the respondent herself, the Court declined to receive them. 4 Ms McColl SC, senior counsel for the appellant, submitted that the appropriate course to be taken in the circumstances was for the hearing to proceed in the absence of the respondent (see O52 r 38A(1)(d) of the Federal Court Rules). 5 The Court was advised that the property the subject of the mortgage had now been sold by a subsequent mortgagee and the proceeds of the sale were held in escrow. The appellant, by its counsel, assured the Court that: (a) it would not seek judgment in a monetary sum against the respondent; and (b) the respondent had no interest in the money held in escrow as all of the money would ultimately be payable to creditors of the respondent or her former husband. 6 In the circumstances, and having regard to the fact that the respondent was plainly aware that the appeal was listed for hearing, the Court determined that the hearing should proceed. 7 At the conclusion of the hearing the Court announced that, for reasons which would later be published, the following orders would be made: 1. The appeal be allowed. 2. The declaration and orders made by the primary judge on 14 May 2001 be set aside and in lieu thereof it be ordered that: (a) the amended cross-claim, in so far as it is made by the second cross-claimant, be dismissed; and (b) the second cross-claimant pay the cross-respondent's costs of the proceeding. 4. The respondent pay the appellant's costs of the appeal. 8 It was for the reasons set out below that the Court on 5 November 2001 made the above orders.