JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: ACCELERATED LOANS PTY LTD -v- FORBES [2024] WASC 504
CORAM: LUNDBERG J
HEARD: 16 DECEMBER 2024
DELIVERED : 23 DECEMBER 2024
FILE NO/S: CIV 1443 of 2024
BETWEEN: ACCELERATED LOANS PTY LTD
Plaintiff
AND
ANTHONY FORBES
First Defendant
JEAN CATHERINE FORBES
Second Defendant
ANTHONY FORBES
JEAN CATHERINE FORBES
Plaintiff by counterclaim
ACCELERATED LOANS PTY LTD
Defendant by counterclaim
Catchwords:
Practice and procedure - Summary judgment application brought by plaintiff lender - Summary judgment sought in respect of plaintiff's claim and defendants' counterclaims - Finance arrangements with borrowers at high interest rates – Defendants provided mortgage and personal guarantees as security for the finance arrangements – Defendants are the parents of the person principally responsible for the borrower companies – Alleged default on the finance arrangements – Plaintiff brings action for possession of the mortgaged property – Claims of unconscionability – Allegation that high interest rate is a penalty - Allegation that quantum of loan changed without guarantors' consent - Numerous contentious factual issues raised in the proceedings - Necessity for claims to be tested at trial – Turns on own facts
Practice and procedure – Proper compliance with the Rules of the Supreme Court 1971 (WA) – Failures to follow requirements applicable to affidavit preparation and filing
Legislation:
Australian Securities and Investments Commission Act 2001 (Cth), s 12BF(1), s 12CB(1)
Rules of the Supreme Court 1971 (WA), O 4AA r 1(1), O 13 r 7, O 14 r 1(1), O 16 r 1(1), O 37 r 2, O 37 r 5, O 37 r 6, O 37 r 9
Result:
Extension of time to bring the summary judgment application is refused.
Plaintiff's chamber summons for summary judgment be dismissed.
Defendants granted unconditional leave to defend the action and to continue the counterclaim.
Costs reserved.
Category: B
Representation:
Counsel:
| Plaintiff | : | J C Yeldon |
| First Defendant | : | T J Langdon |
| Second Defendant | : | T J Langdon |
| Plaintiff by counterclaim | : | T J Langdon |
| Defendant by counterclaim | : | J C Yeldon |
Solicitors:
| Plaintiff | : | Parsons & Partners |
| First Defendant | : | Richards & Lally Lawyers |
| Second Defendant | : | Richards & Lally Lawyers |
| Plaintiff by counterclaim | : | Richards & Lally Lawyers |
| Defendant by counterclaim | : | Parsons & Partners |
Case(s) referred to in decision(s):
Ankar Pty Ltd v National Westminster Finance (Aust) Limited [1987] HCA 15; (1987) 162 CLR 549
Australian Securities and Investments Commission v Kobelt [2019] HCA 18; (2019) 267 CLR 1
Gerovich v Gerovich [2018] WASC 153
King as Bankruptcy Trustee of Jose Fernandas De Silva v De Silva [2024] WASC 367
Paccioco v Australia and New Zealand Banking Group Ltd (2016) 258 CLR 525
Permanent Trustee Company Ltd v Gillian; O'Donnell Permanent Trustee Company v Di Benedeggo [2009] NSWSC 902
Sampey v Doherty [2024] WASCA 105
Stubbings v Jams 2 Pty Ltd [2022] HCA 6; (2022) 276 CLR 1
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
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- AGLC
- Accelerated Loans Pty Ltd v Forbes [2024] WASC 504
- Case
- [2024] WASC 504
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether the plaintiff's application for summary judgment was appropriate. The legal issues included the onus of proof in summary judgment applications, the role of affidavits in such applications, and the necessity of a trial to resolve the contentious factual issues. The court had to decide if the plaintiff had made out a prima facie case, and whether there were any defences or counterclaims that warranted a full trial.
The court held that the plaintiff, as the party seeking summary judgment, bore the onus of persuading the court that the claim was a good one and that there was no defence. The court found that the allegations of unconscionability and the changes in the loan terms raised complex factual issues that required resolution at a trial. Given the conflicting evidence presented in the affidavits, the court concluded that the summary judgment applications were not suitable for this case. The court dismissed the summary judgment applications and granted the defendants unconditional leave to defend the action and prosecute their counterclaims.
In conclusion, the court refused the plaintiff's request for an extension of time and dismissed the summary judgment applications. The defendants were granted leave to defend the action and pursue their counterclaims, ensuring that the case would proceed to a full trial to address the contentious issues.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
It is the party seeking summary judgment who bears the onus of persuading the Court that the claim is a good one and that there is no defence. If the affidavits in support of the application make out a prima facie case, an evidentiary burden will pass to the other party to show that there is a defence to the action. However, the overall legal burden remains with the party seeking summary judgment to persuade the Court that the relief should be granted: Westpac Banking Corporation v Anderson.[21][21] Westpac Banking Corporation v Anderson [2017] WASC 106 [102]. Further, if there is a conflict of evidence on the affidavits, the Court should approach the application for summary judgment on the assumption that the facts set out in the affidavits relied upon by the party resisting the application (in the present case, the defendants) will ultimately be accepted at trial: Gerovich v Gerovich.[22][22] Gerovich v Gerovich [2018] WASC 153 [32]. The foregoing principles reflect a central tenet of civil litigation that, ordinarily, a party's claims (or a party's defences and counterclaims) are to be assessed and determined at a final trial of the action. At the final trial, all such issues in the case are to be tried, subject to any determination that preliminary issues are appropriate or certain aspects of a case should be separately determined. The final trial should only occur after the parties have had the opportunity to avail themselves of the usual interlocutory processes and steps permitted by the Rules, controlled in accordance with the goal and objects in O 1 r 4A and r 4B RSC. Given the fact-sensitive unconscionability and other allegations which have been pleaded and asserted by the defendants, it must be said the summary judgment applications brought by the plaintiff were rather ambitious. For the reasons which follow, I have reached the view that this is not a proper case for judgment to be granted to the plaintiff in the absence of a trial. In the circumstances, the extension of time which the plaintiff seeks should be refused (given the lack of merit in the substantive applications) and the summary judgment applications should themselves be dismissed. The defendants should be granted unconditional leave to defend the action and to prosecute their counterclaims. I will explain below why I have reached the above conclusions. The defendants resist the plaintiff's enforcement action under the mortgage and guarantee on the basis the plaintiff engaged in unconscionable conduct within the meaning of s 12CB(1) of the ASIC Act. The pleaded allegations are focused on the 'ostensible contractual right in the Loan Agreement to impose interest on the loan at the standard rate of 48.6% per annum'.[23] That is, the allegations are directed at the interest rate clauses. Nonetheless, the evidence filed by the defendants and their submissions address the broader circumstances related to the entry into the finance arrangements, the nature of the arrangements, and the execution of the instruments. The factual background to the dispute, as deposed to by the defendants in their affidavits, and summarised in the defendants' submissions, paints a more complex and nuanced picture of the finance arrangements than is evident from Mr Shen's initial affidavits.[23] Defence [4.8] and Counterclaim [8.3].