Westpac Banking Corporation v Channel 8 Holdings Pty Ltd [2014] NSWSC 357

Supreme Court New South Wales

Medium Neutral Citation: Westpac Banking Corporation v Channel 8 Holdings Pty Ltd [2014] NSWSC 357 Hearing dates: 28 March 2014 Decision date: 28 March 2014 Jurisdiction: Common Law Before: Davies J Decision: Pursuant to Part 7, Rule 36 of the UCPR, the Defendant is referred to the Registrar to allow for assistance under the Bar Association Pro Bono Scheme in relation to advice about his defence only. Catchwords: LEGAL AID - pro bono schemes - application for assistance - claim for debt under loan agreements - co-guarantors - creditor deals with one guarantor - recommendation for pro bono assistance limited to advice about defence Legislation Cited: Uniform Civil Procedure Rules Category: Interlocutory applications Parties: Westpac Banking Corporation (Plaintiff) Channel 8 Holdings Pty Ltd (First Defendant) Ryan Arthur Martin (Second Defendant) Representation: Counsel: V Trinh (Plaintiff) R Martin (in person - via telephone conference (Defendant) Solicitors: Gadens Lawyers (Plaintiff) In person (Defendant) File Number(s): 2011/240869

Judgment 1These proceedings commenced on 10 May 2011 seeking possession of land and claiming a judgment against the Defendant as a result of the default under the loan agreement and mortgage. 2There were two Defendants. The first was a company called Channel 8 Holdings Pty Limited and the Second Defendant was a person by the name of Ryan Arthur Martin who was a director of the First Defendant and who provided a guarantee for the loan facility. 3Mr Martin filed a Defence for himself on 25 February 2014. The only matter of substance raised in the Defence is that he was not the only guarantor of the loan but rather he and another person, a Mr Nitopi were both guarantors of the loan. He claims that the lender did a deal with the other guarantor with the result that he, Mr Martin, is now called upon to meet the liability of the company. 4I have seen a copy of the guarantee and on its face it purports to give the right to the lender to deal with either guarantor without reference to the other. It may be that the only right that Mr Martin has is to make a claim for contribution against the other guarantor in respect of any liability he is found to have. However, he indicated on the previous occasion that he could not afford legal assistance. 5By Notice of Motion dated 19 March 2014 he asked the Court to recommend that he should received a pro bono assistance under rule 7(36) UCPR. There has been non compliance with directions in relation to the evidence to support such motion but the position has now been reached where Mr Ryan's personal and financial position and the position of Channel 8 Holdings and one other company in respect of which he is involved has been put in a document which has now been affirmed by Mr Ryan to be true and correct. It is evident from the material contained in that document that Mr Ryan is in a financial position with the potential liability that he has and with the very small amount of income that he receives. As far as the requirement that involves the assessment of the means of the litigant and his capacity to obtain legal assistance, I am satisfied that those matters are demonstrated. 6Another consideration under the rule is the nature and complexity of the proceedings. On one view the proceedings are fairly straight forward and the issue of the liability of the guarantor in the circumstances is a relatively straight forward one. However, I take on board the allegation of the dealing between the lender with the other guarantor leaving Mr Martin in the position of having to meet the whole of the debt. 7I think he should be given the opportunity to obtain legal advice about whether there is any substance to this Defence and if indeed he has any other defence to the claim. Because of the very high level of demand on the pro bono schemes I think it is only appropriate in the first instance to recommend that he has assistance to advise him in relation to his existing Defence and whether or not he has any other defence to the claim. 8If as a result of that advice he is permitted to file a further defence identifying any other defence for the claim, I would be prepared to entertain a further application at that time for further pro bono assistance. Accordingly I make a reference to the Registrar under r 7.36 with the request that the Registrar arrange legal representation for Mr Martin.