Banking Monday, 23 March 2015 View in browser

A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.


Executive Summary (One Minute Read)
Lucisano v Westpac Banking Corporation (FCA) - injunction - possession - bank not restrained from taking possession of property 
City of Subiaco v Homebase Management Pty Ltd (WASCA) - lease - construction of ‘Fair Market Rent’ - appeal allowed 
Parker v BHP Billiton Iron Ore Pty Ltd (WASC) -  application to set aside subpoena refused - application for further and better particulars granted - corporation joined as defendant to counterclaim 
Citigroup Pty Ltd v Middling (No. 4) (NSWSC) - contract - mortgage - agency - contracts between borrower and lender not unjust 
Summaries With Link (Five Minute Read)
Lucisano v Westpac Banking Corporation [2015] FCA 243
Federal Court of Australia
Gordon J
Injunction - possession - applicant sought to restrain bank from taking steps to take possession of applicant’s property - serious question to be tried - balance of convenience - held: facts and matters set out in affidavits and draft fast track statement did not raise any question of contravention of National Consumer Credit Protection Act 2009 (Cth) which would enliven power in s177  and provide foundation for interim relief - in any event Court not  persuaded balance of convenience lay in favour of Court making interim order of kind sought - application refused.
City of Subiaco v Homebase Management Pty Ltd [2015] WASCA 54
Court of Appeal of Western Australia
Martin CJ; Newnes & Murphy JJA
Contract - lease - rent review clause -  appellant landowner granted lease to respondent lessee - lease provided for review of rental payable - rent payable be the highest of number of alternatives one of which was amount equal to ’Fair Market Rent’ - parties each engaged valuers to provide advice with respect to amount equal to Fair Market Rent - dispute arose as to proper construction and effect of the relevant provisions - primary judge made declarations with respect to principles applicable to determination of Fair Market Rent - appellant appealed - proper construction of ‘Fair Market Rent’ - whether it must be taken into account that notional lessee must construct premises on land to enable it to be put to use to which lessee put Leased Premises -   length of term of notional lease to be entered into at Review Date - commercial purpose - held: assessment of Fair Market Rent carried out on erroneous basis - primary judge’s decision set aside - appeal allowed.
Parker v BHP Billiton Iron Ore Pty Ltd [2015] WASC 95
Supreme Court of Western Australia
Edelman J
Discovery - pleadings - joinder - three applications - application to set aside subpoena to produce or restrict inspection of documents produced - application for further and better particulars of amended defence and counterclaim - application to join corporation as defendant to counterclaim - held: subpoena issued for legitimate forensic purpose and was not oppressive - application to set aside dismissed - defendants to replead paragraphs to provide required particulars - joinder of corporation would not have any substantial detrimental effect upon management and progress of proceeding - corporation joined.
Citigroup Pty Ltd v Middling (No. 4) [2015] NSWSC 221
Supreme Court of New South Wales
Adamson J
Contract - loan agreement - agency - plaintiff claimed possession of property of which defendant borrower was registered proprietor - borrower filed cross-claim to which earlier lender (Perpetual) and plaintiff were cross-defendants - defendant granted leave to amend defence and cross-claim to include claims for relief under Contracts Review Act 1980 (NSW) - proceedings between plaintiff and borrower resolved  by deed of release - remaining matter for determination was cross-claim against Perpetual - held: Court not satisfied contracts between borrower and Perpetual were unjust - mortgage originator which prepared and submitted loan application to Perpetual’s mortgage manager (Challenger) not acting as agent for Perpetual or Challenger - dishonest conduct of mortgage originator could not be imputed to Perpetual - judgment for Perpetual.