Courts continue to adjudicate high volumes of bank repossession actions that are often defended by unrepresented customers bringing extraordinary arguments in an desperate attempt to hold on to their homes.

David Waden tried to outflank a Westpac claim in Brisbane’s District Court for recovery of possession of his Burpengary property by filing separate proceedings in the Federal Court.

He had defended the earlier action by asserting payment in full by delivery to Westpac of a “bill of exchange” written up at home with a “face value” of $1.00  and “stamped” with a 5c postage stamp.

It was “redeemable” for the full amount of a $300k loan debt but only upon its “presentation” to him outside the Yatala Brewery “at 14:30 hours on Friday, 24 May 2013”. Westpac ignored the document.

Needless to say her honour judge Leanne Clare dismissed the argument and in December 2013 awarded Westpac summary judgment for $346k (debt & interest) and recovery of possession of the home.  She reasoned the loan agreement did not allow a bill of exchange as an acceptable method of payment and there was no basis for preventing the bank relying on its loan agreement to require payment when due.

The same extraordinary defence has come before numerous other courts on several other occasions in the last 18 months.

Waden’s home-made “bill of exchange” also purported to contruct a $1.3 million default obligation in the event that the bank refused to accept the “bill” in discharge of the mortgage.

It was upon such alleged default debt that Kevin Wilmink and Peter Paalvast – the purported assignees of the “bill” – brought their self-represented federal proceedings against Westpac.

Justice Annabelle Bennett sitting in Sydney dismissed the claim as misguided at best and potentially, “disingenuous”. The so called “bill of exchange” was a nonsense.

Notwithstanding this debacle, ongoing economic uncertainty means we are likely to see further desperate attempts to defeat bank obligations, on ever more outlandish grounds.

Wilmink as Trustee for the Bangarra Trust v Westpac Banking Corporation [2014] FCA 872 Bennett J 19/08/2014


Do you have any questions?

If you have a question, seeking more information or would just like to speak to someone, make an enquiry now and we’ll be in touch with you.

Online Now

Welcome to QLD Business + Property Lawyers! I'm here to assist with enquiries and gather details. How can I help today?