Westpac Banking Corporation v Nirest Nominees Pty Ltd (under external administration) [2014] NSWSC 1745

Supreme Court New South Wales

Medium Neutral Citation: Westpac Banking Corporation v Nirest Nominees Pty Ltd (under external administration) [2014] NSWSC 1745 Hearing dates: 5 December 2014 Decision date: 05 December 2014 Jurisdiction: Common Law Before: Davies J Decision: 1. Leave granted to the Plaintiff nunc pro tunc to commence these proceedings against the First Defendant. 2. Leave to the Plaintiff to enforce the judgment entered on 12 November 2014 by the issue of a writ of possession. Catchwords: CORPORATIONS - receivers and managers - appointment before proceedings commenced - claim for possession pursuant to a mortgage - neither leave obtained nor consent given - consent by receiver and manager later given - leave to commence nunc pro tunc Legislation Cited: Corporations Act 2001 (Cth). Category: Interlocutory applications Parties: Westpac Banking Corporation ( Plaintiff) Nirest Nominees Pty Ltd (under external administration) (First Defendant) Jeffrey Elwood Cummins (Second Defendant) Representation: Counsel: K Fraser ( Plaintiff) No Appearances (Defendants) Solicitors: Kemp Strang ( Plaintiff) No appearances (Defendants) File Number(s): 2013/352857

Judgment 1These proceedings were commenced on 22 November 2013 claiming possession of a property at 7 Albert Terrace, Eden, in respect of which the First Defendant was the registered proprietor. The proceedings also claimed a monetary judgment against the First Defendant and against the Second Defendant who had provided a guarantee and indemnity on 8 February 2009 for the loan agreement entered into with the Plaintiff on 21 January 2009. 2At the time the proceedings were commenced and as noted on the coversheet of the Statement of Claim, the First Defendant was under external administration. A receiver manager had been appointed on 13 December 2012. Neither leave was sought, nor was the consent of the administrator obtained to the commencement of the proceedings against the First Defendant pursuant to s 440D of the Corporations Act 2001 (Cth). 3When the proceedings came before me in the Possession List call up on 21 November I was informed that the Second Defendant had become bankrupt. The Plaintiff sought leave to discontinue the proceedings against the Second Defendant. That leave was given by me. The Second Defendant also had brought a cross-claim against the Plaintiff, but the trustee in bankruptcy had indicated that he did not wish to pursue that cross-claim. Accordingly, the cross-claim was dismissed. 4The proceedings were then stood over to today so that the issues in relation to the First Defendant could be sorted out. Ms Fraser has appeared for the Plaintiff this morning and has told me that, by oversight, the proceedings were commenced without leave or without the consent of the administrator. She has put into evidence a letter from the Receiver and Manager dated 1 December 2014 where the Receiver and Manager notes having been advised of the orders that I made on 21 November. The letter goes on to say that the Receiver and Manager consents to the Plaintiff obtaining a writ of possession from the Court. 5Whilst that letter does not expressly consent to the proceedings having been commenced, I think it necessarily flows from the consent to the enforcement of the default judgment which has been obtained that the Receiver and Manager does in fact consent to the proceedings having been brought in the first instance. There is some further slight support for that from an earlier letter from the Receiver and Manager dated 3 December 2013 which is annexed to the affidavit of Addy Pong sworn 20 November 2014. 6In those circumstances, I consider that it is appropriate to grant leave nunc pro tunc to commence these proceedings. Accordingly, the orders that I make are: 1. Leave granted to the Plaintiff nunc pro tunc to commence these proceedings against the First Defendant. 2. Leave to the Plaintiff to enforce the judgment entered on 12 November 2014 by the issue of a writ of possession.