Westpac Banking Corporation v Wild [2011] NSWSC 760

Supreme Court New South Wales

Medium Neutral Citation: Westpac Banking Corporation v Wild [2011] NSWSC 760 Hearing dates: 4 July 2011 Decision date: 04 July 2011 Before: Gzell J Decision: Leave to amend defence refused with costs. Catchwords: PROCEDURE - Miscellaneous procedural matters - Amendments - late application to deny indebtedness and raise mental illness as a defence - no application under the Uniform Civil Procedure Rules 2005, Pt 12 r 12.6(2) to withdraw admissions in defence - medical report did not say his medical condition prevented him from understanding the loan documents he signed - no explanation for lateness of application - no new principles Legislation Cited: Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 Consumer Credit (New South Wales) Code Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Queensland v J L Holdings Pty Limited [1997] HCA 1; (1997) 189 CLR 146 Category: Procedural and other rulings Parties: Westpac Banking Corporation (Plaintiff) Brett Alan Wild (Defendant) Representation: Counsel Stephen Ipp (Plaintiff) Solicitors DLA Piper Australia (Plaintiff) File Number(s): 2010/81738

Ex Tempore Judgment 1The Civil Procedure Act 2005, s 64(1)(b) enables the Court to grant leave to a party to amend a pleading at any stage of the proceedings. The Court, in entertaining such an application, must have regard to the overriding purpose in s 56 and s 58 of the Act to facilitate the just, quick and cheap resolution of the real issues in the proceedings and to act in accordance with the dictates of justice. So the Court must consider the nature of the proposed amendment and its consequences for the other parties and the expeditious conduct of the proceedings. 2There is no entitlement to an amendment subject to payment of costs. In Queensland v J L Holdings Pty Limited [1997] HCA 1; (1997) 189 CLR 146 at 154 the majority said that if it was arguable the applicants should be permit to argue it, provided that any prejudice to JL Holdings might be compensated by costs. And at 155 they said that case management should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence. 3But in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [96]; 212 the High Court rejected those propositions. 4The rule involved, r 21 of the Court Procedures Rules 2006 (ACT) was similar to s 56 of the Uniform Civil Procedure Rules 2005. At [97]; 213 the majority said that such rules had J L Holdings in mind and could not be ignored. 5In this case Mr Wild is sued as guarantor of loans made by Westpac to Boltak Interstate Hauliers Pty Ltd. In his defence filed on 1 September 2010 and verified by his affidavit, Mr Wild admitted paras 1-7, 9-12, 14-17, 19-23 and 33 of the statement of claim which pleaded entry into loan agreements and guarantees, service of demands and default by Boltak. 6At that time Mr Wild was legally represented. In addition, on 6 September 2010, Mr Wild consented to judgment against him for most of the debt. Hallen AsJ entered orders for Mr Wild to pay $277,000 by 20 September 2010, failing which writs of delivery should issue for chattels held under hire purchase. That happened. The chattels were sold and Westpac now seeks judgment for the balance of the debt owed by Mr Wild with interest and costs. 7The proposed amended defence alleges that Mr Wild is not indebted to Westpac. It asserts that at the time the loan documents were signed he was suffering from a mental illness and was not able to comprehend the nature of his responsibility upon signing the documents. And he says the documents are not binding because dates were altered after signing. 8In his written submissions Mr Wild claimed that provisions of the Consumer Credit (New South Wales) Code were not followed. 9The application to amend should be dismissed for a number of reasons. First, no leave to withdraw the admissions under the Uniform Civil Procedure Rules , Pt 12 r 12.6(2) has been sought. Mr Wild was put on notice of this requirement by Hallen AsJ on 1 March 2011. Mr Wild said he understood but he has not done so. No material has been served on Westpac to support an application for leave to withdraw the admissions. 10Secondly, the contention that Mr Wild was mentally impaired when the loan agreements were executed does not bear on his mental condition when the admissions were made in his defence and when the consent orders were made by Hallen AsJ on 6 September 2010. 11Thirdly, the medical report to which Hallen AsJ ordered that Mr Wild was limited on this application, that of Geoffrey S Robinson, Consultant Psychiatrist, does not say that Mr Wild lacked mental comprehension when he signed the loan agreements. It says that is what Mr Wild asserts. The report reads as follows: "This letter follows our recent discussions in regard to your mental state in 2008. I note that I diagnosed you as suffering from a Post Traumatic Stress Disorder starting in 2004 and continuing to the current time. I understand that you were on convalescent leave from your post in the Army from the January to the June of that year, 2008. I understand that your army medical officer was prescribing calming medications at the time on the advice of the army psychologist Major Sinclair, but that you stopped taking those medications early in 2008. I understand from our conversations that you did not read the documents from the Westpac Bank that you signed at your home during that period, and did not realise that you were signing personal guarantees for loans for various businesses." 12Fourthly, there is no evidence that the post traumatic stress disorder Mr Wild was diagnosed as having produced any impairment of his faculty of comprehension. Mr Wild sent an email to the Court on 4 July 2011 indicating that he would not be appearing as he had sustained injuries driving a tractor. Whether he is here or not, there is no arguable defence based on the allegation of mental impairment. 13Fifthly, to allow the amendments to be made at this late stage is not only highly prejudicial to Westpac but also affects other litigants who might have been accommodated in hearing dates thrown away if the proposed amendment is allowed. The hearing would necessarily be vacated to allow Westpac to investigate Mr Wild's allegation of mental disorder and prepare its case in the absence of the admissions in the defence. 14Sixthly, Mr Wild gave no explanation why it is not until the eleventh hour that he raises his mental condition as a defence. He gives no explanation as to why it was not raised in his defence of 1 September 2010. And if the Consumer Credit (New South Wales) Code was to be raised in an amended defence, the loans and guarantees were not a provision of credit wholly or predominantly for personal, domestic or household purposes. They were not "credit contracts" to which the Code applies. The credit was provided to Boltak to acquire machinery for its haulage business. 15Leave to amend the defence is refused. The defendant is to pay the plaintiff's costs of the application. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 July 2011