FEDERAL COURT OF AUSTRALIA

Lucisano v Westpac Banking Corporation [2015] FCA 243

THE COURT ORDERS THAT:

1.    The applicant’s application for interim relief filed on 17 March 2015 be refused.

2.    The applicant pay the first respondent’s costs of that application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).

REASONS FOR JUDGMENT

1.    INTRODUCTION

1        This is an urgent application for interim relief to restrain the Westpac Banking Corporation (ABN 33 007 457 141) (WBC) from taking any further step in taking possession of the applicant’s property identified in Certificate of Title Volume 09831, Folio 755 and known as 27 Kirkford Drive, Mooroolbark, Victoria 3138 (the Property).

2        A warrant for possession of the Property has been issued. The Sheriff has advised the applicant that she will be evicted from the Property at 11.00am tomorrow morning, 18 March 2015. The applicant was served with a notice to vacate the Property on 11 March 2015.

2.    BACKGROUND

3        The history of the dispute between the applicant, her husband and the respondents is long and complicated. The nature of the dispute was described by the applicant in a draft fast track statement provided to the Court in the following terms:

This dispute alleges invalidity of [WBC’s] mortgage documents and defaults in pre-contractual disclosure, and furthermore impugns [WBC’s] enforcement conduct between January 2011 and the present. [WBC] has at each turn wrongfully frustrated the applicant’s efforts to service the loan agreements. Moreover, the conduct of [WBC] and its agents have ensured that the Applicant’s debt and moreover arrears continued to escalate beyond her capacity to repay, predominately aided by enforcement costs in the area between $70,000 to $80,000. In addition, [WBC] has colluded with CSL [the second respondent], a third party with whom the Applicant has litigation on foot, actively facilitating the interests of CSL whilst compromising the position of the applicant breaching its duties in statute, in contract and common law.

4        By an application filed this afternoon purportedly under one or more of r 7.01(1)(a) of the Federal Court Rules 2011 (Cth), s 12GD of the Australian Securities and Investments Commission Act 2001 (Cth), s 98 of the Privacy Act 1988 (Cth) and what is described as s 117 of the National Consumer Credit Protection Act 2009 (Cth) (NCCP Act), the applicant seeks an interim injunction to restrain WBC from taking any further step in taking possession of the Property until the hearing of the applicant’s application.

5        The application for interim relief was brought on urgently this afternoon. WBC was given late notice of the application and appeared. CSL, the second respondent, was given notice of the application but did not appear. No interim relief was sought against it.

3.    CONSIDERATION

6        The test which the Court must apply in determining whether an interim injunction should be granted is well settled: see, eg, Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [65]-[72].

7        There are two enquiries – is there a serious question to be tried and where does the balance of convenience lay? In relation to the first enquiry, it is sufficient if the applicant demonstrates a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending the trial: see O’Neill at [65]. This threshold is not particularly onerous: Cahill v Construction Forestry Mining and Energy Union [2006] FCA 196 at [22]. In considering the second enquiry – the balance of convenience and the interests of justice of the case – the Court must assess and compare the prejudice and hardship likely to be suffered if an injunction is granted with that which is likely to be suffered if one is not granted.

3.1    Serious question to be tried?

8        Is there a serious question to be tried? Unfortunately, the applicant fails at the first hurdle. No cause of action has been identified which would raise, in my view, any question, let alone a serious question, to be tried. The legislative provisions referred to by the applicant (see [4] above) identify the power of the Court to grant an injunction in certain circumstances. Other than the reference to s 117 of the NCCP Act (which I assume should be taken to be a reference to s 177 of the NCCP Act) none of the provisions identify a cause of action.

9        Extensive affidavit material has been filed by and on behalf of the applicant, as well as a detailed draft fast track statement. I note that draft fast track statement has not yet been filed, but I have given serious consideration to its contents. Those affidavits and the draft fast track statement record events commencing in October 2010 and include matters which do not appear to have any direct relevance to the warrant for possession. Indeed, the affidavits do not address any complaint about the warrant for possession. In the accompanying document filed with the application, the applicant stated:

The urgency of this application is such that the sheriff's office has informed the applicant that it will be exercising a notice to vacate tomorrow morning at 11 AM.

The reason for the short notice of this application is the notice to vacate was not served on the applicant until late Wednesday of last week, the applicant concedes that she was expecting the notice to vacate to be served on her, but did so with the expectation that she would [be] extended the usual 3 Fridays away notice to vacate, additionally we have been attempting to secure legal representation for the applicant up until as late as yesterday afternoon to no avail.

…

Furthermore we have well founded concerns as to our personal safety, I totally understand that this is an extremely serious contention to put forward, considering the fact that nothing is contained within the material to substantiate any such concern and would purely be hearsay, nevertheless obtaining these initial injunctions are imperative, if proceeding [on an] ex parte basis should mitigate against obtaining the order sought today we will proceed on an interparty basis and trust that the court remains sensitive to our concerns.

…

10        I note that the matter proceeded on an inter partes basis.

11        None of the facts and matters set out in the affidavits or the draft fast track statement appear to raise any question, let alone a serious question:

(1)    of a contravention of the NCCP Act which would enliven the power in s 177 of the NCCP Act; and

(2)    that would provide the necessary foundation for the interim relief of the kind sought by the applicant.

12        In this context, the following facts are important and must be reiterated:

(1)    In about February 2009, funds were advanced to the applicant by WBC, secured against the Property and remain outstanding;

(2)    On 18 July 2013, WBC filed a writ in the County Court of Victoria seeking to enforce its power of sale of the Property;

(3)    On 16 December 2013, WBC obtained judgment for possession of the Property, in default of the applicant filing a defence; and

(4)    On 29 August 2014, the applicant’s application for a stay of that judgment was dismissed with costs. An earlier application by the applicant for the judgment to be set aside was not pursued. The applicant was legally represented at that hearing in August 2014.

13        In all of these circumstances, I do not consider that the current application gives rise to a serious question to be tried. That of itself is sufficient to dispose of the interim application.

3.2    Balance of convenience

14        It is appropriate, however, to say something about the second line of enquiry, the balance of convenience. There is no doubt that the applicant and her family will suffer prejudice if they are evicted from the Property. That prejudice is not surprising. No one wants to be evicted from their property. Matters of that kind would be relevant to the exercise of my discretion if I determined that there was a serious question to be tried. Having reached the conclusion that I have, however, I do not need to consider these aspects of the applicant’s claim for interim relief further.

15        However, it is appropriate to record some aspects of this limb. As the applicant conceded, she expected the notice to vacate the Property would be served on her. Her only surprise was the short period, of just over one week, that she was given to vacate the Property. That period was short but is not too short. The history of the dispute between the parties records that this is not the first writ of possession obtained by WBC in relation to the Property. Put another way, the current notice to vacate is no surprise. But more importantly, as noted earlier, funds advanced to the applicant by WBC, secured against the Property, remain outstanding and the applicant is not in a position to pay those funds into Court. That is a relevant consideration (cf, for example, Nicholas John Holdings Pty Ltd v Australia and New Zealand Banking Group Ltd [1992] 2 VR 715 at 729 and National Australia Bank Ltd v Zollo (1995) 64 SASR 63).

16        In my view, the application for relief must be refused on the basis that the applicant has failed to establish the existence of a serious question to be tried, and in any event, I am not persuaded that the balance of convenience lies in favour of the Court making an interim order of the kind sought by the applicant. For these reasons, I order that the applicant’s application for interim relief be refused. The applicant is to pay the costs of WBC in relation to that application. If the applicant intends to proceed with this claim (being the draft claim set out in the draft fast track statement) then she will need to file and serve an originating application and a fast track statement as a matter of urgency.

Associate:

Dated:    17 March 2015