Westpac Banking Corporation Arbn 007 457 141 v David Lindsay Barnes and Donna Marie Barnes (Also Known As Donna Maree Cappello) [1992] ACTSC 30; (1992) 106 FLR 438 (30 March 1992)

SUPREME COURT OF THE ACT

WESTPAC BANKING CORPORATION A.R.B.N. 007 457 141 v. DAVID LINDSAY BARNES and
DONNA MARIE BARNES (also known as DONNA MAREE CAPPELLO)
S.C. No. 102 of 1992
Practice and Procedure
[1992] ACTSC 30; (1992) 106 FLR 438

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Practice and Procedure - application for stay of proceedings - proceedings pending elsewhere - possibility of transfer of proceedings pursuant to cross-vesting legislation.

Real Property Act 1925, sub-s.93(2)

HEARING

CANBERRA
30:3:1992

Counsel for the applicants/defendants: B. Meagher

Solicitors for the applicants/defendants: Ken Johnston Bedford and Co.

Counsel for the respondent/plaintiff: R. Clynes

Solicitors for the respondent/plaintiff: Minter Ellison

ORDER

1. A stay be granted until such time as the Supreme Court of New South Wales decides pursuant to the cross-vesting legislation that the proceedings in the Equity Division of that Court No. 5500 of 1991 be transferred to this Court; if and when the Supreme Court of New South Wales so decides application may be made to remove the stay.

2. The costs of this application be costs in the cause.

DECISION

On 13 March 1992 I made certain orders in this matter and said I would give reasons later. These are the reasons.

2. This was an application by the defendants for a stay of proceedings in an action for possession of land brought by the plaintiff (Westpac). Westpac claimed that the defendants are in default in payment of moneys due under a mortgage, described as an "all moneys" mortgage, whereby the defendants mortgaged to Westpac their interest as lessees in the land which is at Scullin and on which they have their home.

3. On 4 March 1991 Westpac required payment of moneys claimed to be due under the mortgage.

4. On 3 September 1991 Westpac gave notice of intention to proceed after one month of service of the notice pursuant to sub-s.93(2) of the Real Property Act 1925. The date of service of the notice is not known.

5. On 5 November 1991 the defendants commenced proceedings in the Supreme Court of New South Wales, Equity Division, by statement of claim in which they alleged that they entered into an oral agreement with Westpac for the lease to them by Westpac of some earth-moving equipment. The lease was a method whereby the defendants obtained finance to gain possession of that equipment. The statement of claim further alleged that on 15 September 1989 in accordance with the agreement, Westpac deposited $75,000 into the account of a person believed to be the then owner (described as the "vendor") of the equipment. The account was at the Junee Branch of the ANZ Bank and on 19 September 1989 a written lease was executed and payments by the defendants to Westpac pursuant to the lease commenced.

6. The defendants claimed in the proceedings brought in the Supreme Court of New South Wales that in breach of warranties for title and quiet enjoyment, the equipment was not the property of Westpac nor of the "vendor" and has been seized by the true owner, Esanda. The defendants stopped making payments on the lease after Esanda resumed possession of the equipment. The defendants claimed the return of moneys paid pursuant to the lease agreement and damages for breach of contract, negligence and breach of the Trade Practices Act. The quantum of the claim for damages is not specified.

7. In the action in this Court the amount claimed to be owing under the mortgage of the interest in the land is $97,644.18, being $21,092.91 in respect of an overdraft and $76,551.27 in respect of the lease. No defence has been filed, but it may be anticipated that if no stay is granted, a defence and counter-claim will be filed, more or less in the same terms as the statement of claim in the proceedings in the Supreme Court of New South Wales. There is also a possible issue whether the claim under the mortgage may properly include a claim for the moneys owing under the lease. I am told that the amount of the counter-claim will exceed the amount claimed by Westpac.

8. No explanation was given for the commencement of the proceedings by the defendants in New South Wales rather than in the Australian Capital Territory. They bank at the Belconnen Churches Centre Branch of Westpac, and it was at that branch that all discussions relating to the lease took place. They took delivery of the equipment in the ACT and the land is in the ACT. I expect that even in New South Wales the case would have to be decided on ACT law, and I understand that the law as to misrepresentation in New South Wales may be different from that in the Australian Capital Territory.

9. Nevertheless the defendants have a claim brought in New South Wales where Westpac is present and amenable to the jurisdiction of the courts of that State. It is not possible for this Court to divest a New South Wales Court of its jurisdiction of a matter properly before it. If the case in the Supreme Court of New South Wales proceeds expeditiously, there may be no point in seeking to have it transferred to this Court. However, it may well be that if an application were made to the Supreme Court of New South Wales, that Court might well decide that it is in the interests of justice to transfer the proceedings to this Court pursuant to the cross-vesting legislation. On the one hand, there appears to be nothing to be gained at this stage by ordering a permanent stay of the proceedings in this Court so long as there is a possibility that the Supreme Court of New South Wales will transfer the proceedings there into this Court. On the other hand, whilst the proceedings in the Supreme Court of New South Wales continue, it is inappropriate to allow the present proceedings to continue in this Court. In that situation it seemed to me that the proper order should be that a stay be granted until such time as the Supreme Court of New South Wales decides pursuant to the cross-vesting legislation that the proceedings in the Equity Division of that Court No. 5500 of 1991 should be transferred to this Court; if and when the Supreme Court of New South Wales so decides application may be made to remove the stay. I so ordered. Costs of this application to be costs in the cause.