Wilmink (Trustee) v Westpac Banking Corporation [2014] FCA 872

David John Waden as trustee for the Waden Family Investment Trust entered into a mortgage which was secured over a property. Westpac commenced proceedings in the District Court seeking judgment for the amount and possession of the property.  At the hearing, the Mr Waden explained that he had paid the $325,000 by way of a “bill of exchange”.  On the front page of the Bill, Mr Waden appeared to direct himself (both in his own right and as trustee for the Trust) to pay the amount of one Australian dollar, which could only be accepted at a specific place and time. The Bill also contained a “Default and Liability Clause and Notice” which provided that, in the event of default, the amount of $1,300,000 would become payable by Westpac within seven days of the default.

Westpac was awarded summary judgment in the District Court proceedings in the amount of $345,748.08, possession of the Property and costs.  An application for a stay of the judgment was dismissed. The applicants commenced proceedings in Wilmink (Trustee) v Westpac Banking Corporation, [2014] FCA 872 1 alleging default by Westpac and seeking damages in the amount of $1,3000,000, plus interest and costs. The court noted:

The above arguments appear to have been previously considered in Bertola v Australian and New Zealand Banking Corporation [2014] FCA 609 and Deputy Commissioner of Taxation v Sproule [2012] FMCA 1188, each of which dealt with facts and issues significantly similar to the present case.

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The applicants’ application for an extension of time to file their written submissions in reply was refused in Wilmink as Trustee for the Bangarra Trust v Westpac Banking Corporation (No 2) [2014] FCA 889. 2

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In Wilmink (Trustee) v Westpac Banking Corporation [2014] FCA 1184 3 the applicants were Kevin Wilmink, as trustee for the Bangarra Trust, and Peter Paalvast, as trustee for the Bangarra Trust. They filed a Notice of Appeal from Wilmink v Westpac Banking Corporation [2014] FCA 872,  and sought a stay of all action proposed by Westpac under its mortgage pending the determination of the appeal. The grounds specified in their document were vague, and the form of the Notice of Appeal did not conform with the relevant Rules and the general principles governing the form of such documents, and was struck out. However, leave was granted to file and serve an Amended Notice of Appeal from the judgment of the primary judge and in which the grounds of appeal were appropriately specified.

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Wilmink v Westpac Banking Corporation, [2015] FCAFC 17 4 was the appeal from both the decisions of Wilmink v Westpac Banking Corporation [2014] FCA 872 and Wilmink v Westpac Banking Corporation (No 2) [2014] FCA 889. The court dismissed the appellants’ claim for damages against the bank with costs. The court noted from the start that:

“The appeal was heard immediately before an appeal from the decision of another judge of this Court (Atkinson v Commissioner of Taxation [2014] FCA 1217). The claim is based upon an alleged default by the bank under a purported bill of exchange. The purported bill of exchange was created by a Mr Waden. The contention that the bank has any obligation under that document has no foundation. As appears from the Reasons in Atkinson v Commissioner of Taxation [2015] FCAFC 18, a similar claim based on a purported bill of exchange created by Mr Atkinson also has no foundation.”

Click to access wilmink-v-westpac-banking-corporation-2015-fcafc-17.pdf