Westpac Banking Corporation v Shields

Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 57, 58
Uniform Civil Procedure Rules 2005 (NSW) r 12.6

Cases Cited: Chiu v Sheh [2021] NSWSC 19
For the Good Times Pty Ltd v Coltern Pty Ltd [2007] NSWSC 108

Category: Procedural rulings

Parties: Westpac Banking Corporation (Plaintiff)
Desmond Joseph Shields (Defendant)

Representation: Counsel:
E Steer (Plaintiff)
B Hemsworth (Solicitor) (Defendant)
Solicitors:
Dentons Australia Limited (Plaintiff)
Somerville Legal (Defendant)

File Number(s): 2024/00232706

Publication restriction: Nil.

JUDGMENT – Duty – Ex Tempore – Revised

1. The defendant brings a notice of motion filed on 25 February 2026 seeking the following orders:

2. That the defendant be granted leave to withdraw admissions pursuant to r 12.6 of the Uniform Civil Procedure Rules made in its amended defence filed 7 August 2025 at paragraphs 5, 6, 7, 11.1, 11.2, 12, 13, 14, 15, 24, 25, 26, 27, and 28; and

3. That the defendant be granted leave to file and serve a further amended defence in the form annexed to this motion.

4. The defendant read three affidavits of Desmond Joseph Shields dated 15 December 2025, 27 January 2026, and 11 March 2026 and tendered exhibits to each of those affidavits. The plaintiff read an affidavit of Justin Gibb Bates of 19 March 2026 and tendered an exhibit. An objection to relevance was taken to the defendant’s affidavits, and they were read subject to their relevance.

5. In respect of the first order sought by the defendant, UCPR r 12.6 provides:

12.6 Withdrawal of matter in defence or subsequent pleading

(1) A party raising any matter in a defence or subsequent pleading may withdraw the matter at any time.

(2) Despite subrule (1), a party may not withdraw any admission, or any other matter that operates for the benefit of another party, except with the consent of the other party or by leave of the court.

(3) A withdrawal under this rule is to be made by filing a notice of withdrawal stating the extent of the withdrawal.

(4) If the withdrawal is by consent, the notice under subrule (3) must be accompanied by a notice from each party whose consent is required by subrule (2) to the effect that the party consents to the admission or other matter being withdrawn in accordance with the notice of withdrawal.

4. The threshold question is whether or not an amendment amounts to a withdrawal of an admission which operates for the benefit of another party. There is no dispute in this case that the admissions that the defendant seeks to withdraw are clearly admissions that fall within the scope of the rule.

5. Therefore, the next question is whether or not a full and proper explanation has been given as to why leave should be granted for the withdrawal of those admissions. In Chiu v Sheh [2021] NSWSC 19, Slattery J said at [23]:

“A full and proper explanation for making the admission is required. It is undesirable for the case to be decided on a false issue by reason of the refusal to withdraw the admission. There must be some evidence to show how the admission was made (whether by mistake, confusion, or inadvertence, rather than being a deliberate course of conduct) and to show that the admission was erroneous. The balance of prejudice arising from the withdrawal of an admission is relevant to the Court's exercise of its discretion.”

6. In this case, the explanation given by the defendant over the course of his three affidavits is that, although he was suspicious about the veracity of his signature on at least one document at a time prior to the commencement of these proceedings, and he was still suspicious at the time that he swore an affidavit verifying both the defence and the amended defence, he nonetheless verified the defence and amended defence because he could not reconcile that suspicion with what appeared to him to be his signature. His evidence is that this changed in about August 2025, when, after documents were produced on subpoena by a party other than the defendant, he became suspicious about his signature on not only the document which was produced, but also on bank documents that are the subject of these proceedings. The defendant says that he then conducted investigations while collating his evidence for these proceedings, and came to the conclusion (which he now says is unequivocal) that the signatures on the relevant bank documents are not his signatures.

7. Whilst I accept that the defendant's explanation is not perfect, and could perhaps have been more fulsome, I accept his explanation for the purposes of this application.

8. In For the Good Times Pty Ltd v Coltern Pty Ltd [2007] NSWSC 108, Young CJ in Eq said at [3]:

“Essentially, the Court is after the truth. The pleadings are the principal method of defining the issues to enable the Court more easily to get to the truth. Thus, in principle, an erroneous admission should be able to be withdrawn unless other factors outweigh.”

9. I accept that the defendant has, in effect, erroneously made the admissions in both the defence and the amended defence. I make no findings about the credibility of the defendant, as, in my opinion, it would be inappropriate to do so on an interlocutory application.

10. As to the factors that I must weigh when determining a grant of leave, Ms Steer, who put her client's position with accuracy and grace, submitted that the proceedings are far advanced, that her client will have to locate witnesses who may not have been in contact with her client for a very long time (and whose memories will be degraded if they are found) and that costs are not an answer for such an application.

11. Ms Steer invoked ss 56 and 57 of the Civil Procedure Act 2005 (NSW), which I need not repeat here. Those sections are very important, but so too is s 58 of that Act: the Court must seek to act in accordance with the dictates of justice.

12. I observe that, to date, there has been no real delay in this matter, and I propose, in any event, to make directions for the orderly conduct of this matter up until trial. I have taken into account all of the competing considerations. In my opinion, on balance, the defendant should have leave to withdraw the admissions on terms. I observe that the plaintiff will be free to explore with the defendant the circumstances in which the admissions were withdrawn during the trial and will not be constrained from doing so by this grant of leave. In my opinion, and without constraining the trial judge, that would be proper cross-examination.

13. I make the following orders:-

14. Pursuant to rule 12.6 of the Uniform Civil Procedure Rules, the defendant is granted leave to withdraw the admissions made in the amended defence filed on 7 August 2025 at paragraphs 5, 6, 7, 11.1, 11.2, 12, 13, 14, 15, 24, 25, 26, 27, and 28;

15. The defendant is granted leave to file and serve a further amended defence in the form annexed to the notice of motion filed on 25 February 2026 by close of business on 27 March 2026;

16. The defendant is to pay the plaintiff's costs of the notice of motion and any costs occasioned by reason of the amendment.

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Amendments

31 March 2026

Minor typographical error corrected in [13].