Westpac v Clayton [2012] NSWSC 283

The borrower acquired six investment properties with bank funding totalling $1.7m. The loan went into default and the bank sought possession. The borrower defended on the grounds that the bank’s demands to repay the loans were invalid and also claimed unconscionable conduct due to alleged representations made by officers of the bank that the loans would not be called up. The bank sought to have the defence and cross-claim struck out and default judgment entered.

Notwithstanding various demands extending over many years, a mediation, and many opportunities to file evidence over a 12 month period the borrower failed to file any evidence in the proceedings. When they matter finally came to trial, they requested a 6 month adjournment to enable refinance.

The court found that the only conclusion which could be drawn from their failure to serve evidence was that they did not have any evidence to substantiate their allegations. The court noted that nearly three years had passed since the bank made a demand upon the borrower to repay the loans, and nearly two years since proceedings were commenced. But the borrower, as he had done for over three years, failed to address the real issues. The court found the case to be an absolutely clear one. The bank was entitled to recover its money and to enforce the securities.

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