Westpac Banking Corporation & Anor v Heslop & Anor (No 2) [2020] QSC 256

Date: 21 August 2020
Court/Tribunal: Supreme Court of Queensland
Judicial Officer: Bradley J
Human Rights Act 2019 (Qld) Sections: N/A
Rights Considered: N/A
Other Legislation: Modified Code of Banking Practice 2004
Keywords: Commercial

Westpac Bank claimed $329,034.48 from the first defendant (Mr Heslop), who was the guarantor of a debt in this amount. Mr Heslop alleged that Westpac and the second plaintiff (the Receiver) ‘breached Article 12 of the Human Rights Act’. The Court noted that Mr Heslop’s reference to the ‘Human Rights Act’ was unclear. Further, as the Human Rights Act 2019 (Qld) had not been enacted when this occurred, the Act did not apply.

The first plaintiff (Westpac) claimed $329,034.48 from the first defendant (Mr Heslop). Westpac asserted that Mr Heslop was the guarantor of a debt in this amount owed by Lonrae Pty Ltd (Lonrae) pursuant to a written guarantee and indemnity Mr Heslop executed on 24 June 2004.

In his defence, Mr Heslop alleged that Westpac and the Receiver failed to comply with their respective obligations under various codes of professional practice, including the Modified Code of Banking Practice 2004, and as such, denied that he was liable to Westpac under the Guarantee. The Court rejected these arguments, finding that there was no evidence of any failure by Westpac or the Receiver to comply with the relevant codes.

Mr Heslop also pleaded that Westpac and the Receiver ‘breached Article 12 of the Human Rights Act by engineering the default and subsequent events which led to assault and unlawful detention of [Mr Heslop] and the sequential loss to both [Mr Heslop] and [Ms Harper] by forcefully and unlawfully taking possession of [the Parc MLR business]. This breach resulted in the loss of dignity by both [Mr Heslop] and [Ms Harper]’: at [244]. The Court found that Mr Heslop’s reference to the ‘Human Rights Act’ was ‘unclear’: at [245]. His Honour noted that the Human Rights Act 2019 (Qld) had not been enacted and so did not apply in December 2013 when the Receiver took control of the Lonrae assets: at [245]. The Court remarked that it was more likely Mr Helsop was referring to article 12 of the Universal Declaration of Human Rights, though this ‘[did] not clarify the statutory basis of the contention raised by Mr Heslop’: at [246]-[247]. Moreover, the Court found that there was no factual basis for these allegations: at [248].

The Court held that, in the circumstances, Mr Heslop’s defence to Westpac’s claim under the Guarantee failed.. The Court also dismissed Mr Heslop’s counterclaim against Westpac and the Receiver, and awarded standard costs for the counterclaim to Westpac: at [275].

Visit the judgement: Westpac Banking Corporation & Anor v Heslop & Anor (No 2) [2020] QSC 256