McLEAN v Westpac Banking Corporation

[2012] WASCA 152

Western Australia Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Practice and Procedure
2. › Appeal
3. › Application to dismiss appeal
4. › No reasonable prospect of success
5. › Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i)
1. Real Property
2. › Mortgages
3. › Enforcement by mortgagee
4. › Proceedings for possession
5. › Defence of securitisation
6. › Whether equitable assignment of lender's interest deprives lender of right to enforce mortgage
7. › Whether securitisation defence has merit
1. Practice and Procedure
2. › Apprehended bias
3. › Judge drawing parties' attention to relevant authorities before trial
4. › Whether reasonable apprehension of bias

Quick Take

A borrower's allegation that a lender has 'securitised' loans by equitable assignment does not constitute a defence to possession proceedings; absent a legal assignment, the lender as legal titleholder retains the right to enforce the loan agreement and mortgage. The onus of proving securitisation lies on the borrower, not the lender.