FEDERAL COURT OF AUSTRALIA Lucisano v Westpac Banking Corporation [2015] FCA 1197 Citation: Lucisano v Westpac Banking Corporation [2015] FCA 1197 Parties: NANCY LUCISANO v WESTPAC BANKING CORPORATION (ABN 33 007 457 141) File number: VID 682 of 2015 Judge: MIDDLETON J Date of judgment: 28 October 2015 Catchwords: INJUNCTIONS – Interim relief – interlocutory injunction – possession of property – mortgagor sale – National Credit Code – application for interim relief refused. Legislation: National Consumer Credit Protection Act 2009 (Cth) Cases cited: Lucisano v Westpac Banking Corporation [2015] FCA 243 Date of hearing: 28 October 2015 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 18 Counsel for the Applicant: Mr F Lucisano, appeared on behalf of the Applicant Counsel for the Respondent: Mr S D Hay Solicitor for the Respondent: Gadens IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 682 of 2015 BETWEEN: NANCY LUCISANO Applicant AND: WESTPAC BANKING CORPORATION (ABN 33 007 457 141) Respondent JUDGE: MIDDLETON J DATE OF ORDER: 28 OCTOBER 2015 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The Applicant's application for interim relief filed on 27 October 2015 be refused. 2. The Applicant pay the Respondent's costs of that application. 3. The Applicant has leave to discontinue this proceeding. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 682 of 2015 BETWEEN: NANCY LUCISANO Applicant AND: WESTPAC BANKING CORPORATION (ABN 33 007 457 141) Respondent JUDGE: MIDDLETON J DATE: 28 OCTOBER 2015 PLACE: MELBOURNE REASONS FOR JUDGMENT INTRODUCTION 1 This is an urgent application for interim relief to restrain Westpac Banking Corporation (ABN 33 007 457 141) ('Westpac') from taking any further step in taking possession of the Applicant's property, known as 27 Kirkford Drive, Mooroolbark, Victoria 3138 (the 'Property'). 2 A warrant for possession of the Property has been issued, and Westpac has informed the court that the Applicant is due to be evicted from the Property this afternoon. The Applicant was served with a notice to vacate some time ago. 3 In addition to that primary relief, the Applicant has also sought an order pursuant to s 51(3) of the National Credit Code (Schedule 1 to the National Consumer Credit Protection Act 2009 (Cth)), authorising the Applicant herself to conduct a mortgagor sale of the Property on certain conditions. 4 It is apparent that the Applicant wants to conduct the sale of the Property herself to be able to obtain the best possible price, and organise an orderly disposal, and moving out of the Property. Background 5 The Applicant made a similar application before Gordon J on 17 March 2015: see Lucisano v Westpac Banking Corporation [2015] FCA 243 ('Gordon J's Decision'). The alternative relief sought by the Applicant under the National Credit Code in this current application was not, however, sought in the proceeding before Gordon J. 6 As Gordon J noted (at [3]), the history of the dispute between the Applicant, her husband and Westpac has been long and complicated. Such history is set out in some detail in the affidavit of the Applicant's husband, Frank Lucisano, dated 27 October 2015 ('Mr Lucisano's Affidavit'). RELEVANT TEST TO BE APPLIED 7 In Gordon J's Decision, her Honour outlined (at [7]) the two enquiries a court must make to determine whether an interim injunction should be granted – is there a serious question to be tried and where does the balance of convenience lie? 8 I do not need to rehearse what her Honour said in respect of those enquiries in that decision. I accept what her Honour said, however, as the basis for a proper decision having been made on 17 March 2015, based upon the material put before the court at that time. 9 Importantly, her Honour was aware, as I am, that the Applicant and her family will suffer prejudice if they are evicted from the Property. This is clearly a matter that was relevant to the exercise of her Honour's discretion, as it is mine. CONSIDERATION OF The Present Application 10 In light of the above considerations, the real issue to be decided in this application is whether any circumstances have arisen or developed in such a way as to warrant a finding different to that reached by Gordon J on 17 March 2015. 11 I granted leave to Mr Lucisano to appear on behalf of the Applicant in this matter. Over the course of this morning's hearing, Mr Lucisano's submissions focused on events that have occurred since 17 March 2015. Specifically, Mr Lucisano raised allegations of unconscionability on Westpac's behalf, in particular in unreasonably frustrating potential sales that have occurred or been available to the Applicant since Gordon J's Decision. Some material has been put before the court in Mr Lucisano's Affidavit relating to Westpac's conduct during that period of time. 12 I cannot be satisfied, however, even at this early stage of a proceeding, that there is evidence of unconscionability or unreasonable behaviour on Westpac's behalf. I come to this conclusion having particular regard to the history of the matter and the existence of a judgment obtained by Westpac some time ago in the County Court of Victoria (the 'County Court') permitting Westpac to take possession of the Property. 13 The reality of the position is that if any dispute arises as to Westpac's right to possession of the Property, as determined by the County Court, then it is for the County Court to reconsider its decision. I cannot revisit the questions that were before the County Court, nor do I see anything that gives rise to any issue that needs to, or could be dealt with by this court since Gordon J's Decision. 14 During the course of the hearing this morning, I was considering whether it would be appropriate to adjourn this application to allow some time for the Applicant and Westpac to consider further the process and physical mechanics of taking of possession of the Property, due to occur this afternoon. 15 I was not considering this to facilitate the Applicant conducting a sale of the Property herself, as I think that time has passed. I was considering this avenue only as a way to allow the Applicant and her family some time to organise their affairs. 16 Having regard both to the conclusions I have reached and to Gordon J's Decision, I do not think it would be appropriate for this court to intervene in such a way. I will assume that Westpac will act in an orderly and proper manner in taking possession, and will give appropriate time for the Applicant and her family to relocate, if that is the consequence of their taking possession this afternoon. It would appear to me to be in Westpac's interests to so act. 17 On the basis of the above reasons, I refuse the application for interim relief and will so order. 18 After I indicated my decision in this interlocutory application, the Applicant applied for leave to discontinue the proceeding. This application was unopposed and I will grant leave to discontinue the proceeding. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate: Dated: 6 November 2015