Australia and New Zealand Banking Group Limited v Chen
[2025] WASC 305
•4 AUGUST 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED -v- CHEN [2025] WASC 305
CORAM: MASTER RUSSELL
HEARD: 31 JULY 2025
DELIVERED : 31 JULY 2025
PUBLISHED : 4 AUGUST 2025
FILE NO/S: CIV 1895 of 2024
BETWEEN: AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
Plaintiff
AND
I-JU CHEN
Defendant
Catchwords:
Practice and procedure - Summary judgment - Mortgage action - Application for possession of property - Turns on own facts
Practice and procedure - Summary judgment - Application for leave to apply for summary judgment pursuant to O 14 r 1 Rules of the Supreme Court 1971 (WA) - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA) O 14, O 14 r 1, O 14 r 1(1), O 14 r 2(1), O 14 r 3
Transfer of Land Act 1893 (WA) s 116.
Result:
Application granted
Summary judgment entered for the plaintiff
Order for possession of mortgaged property
Category: B
Representation:
Counsel:
| Plaintiff | : | Ms C M Guy |
| Defendant | : | In person |
Solicitors:
| Plaintiff | : | TG Legal + Technology |
| Defendant | : | In person |
Cases referred to in decision(s):
Carver v Westpac Banking Corporation [2002] NSWSC 431
Cologna Investments Pty Ltd as trustee for the P. and D. Panizza Family Trust v Caranna [2023] WASC 368
Commonwealth Bank of Australia v Hardie [2004] WASC 186
Deputy Commissioner of Taxation v Lafferty [2017] WASC 257
Forsyth v Blundell (1973) 129 CLR 477
Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Hanshaw v National Australia Bank Ltd [2012] NSWCA 100
Mineralogy Pty Ltd v Sino Iron (No 11) [2016] WASC 235
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
MTI v SUL [No 2] [2010] WASCA 58
Rockett v Evans [2008] QSC 227
Smart v Prisoner Review Board (WA) [2012] WASC 48
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Westpac Banking Corporation v Anderson [2017] WASC 106
MASTER RUSSELL:
Overview
The defendant and Ko-Han Chang are the registered proprietors of the land and property in Langford, Western Australia described as Lot 25 on Plan 23950 and being the whole of the land comprised in Certificate of Title Volume 2186 Folio 728 (Property).
The plaintiff, Australia and New Zealand Banking Group Limited, commenced these proceedings against the defendant on 30 July 2024. It seeks an order for possession of the Property pursuant to the terms of a written loan agreement between the plaintiff and the defendant and Mr Chang dated 23 September 2016 (Loan Agreement), and of a registered mortgage granted to the plaintiff by the defendant and Mr Chang to secure all moneys owing under the Loan Agreement.
The plaintiff has not joined Mr Chang, the other registered proprietor of the Property, as a party to these proceedings. Despite efforts to locate him, the plaintiff has been unable to do so. He is believed to be residing overseas and his current whereabouts are unknown.
By chamber summons filed on 4 April 2025, the plaintiff applies for summary judgment against the defendant, pursuant to O 14 of the Rules of the Supreme Court 1971 (WA) (RSC), in relation to its claim for possession of the Property (Application).
The plaintiff also seeks leave to bring the Application out of time, as it was not made within 21-days of the date the defendant entered an appearance, as required under O 14 r 1 RSC. The defendant filed a memorandum of appearance on 30 January 2025. As such, the time for bringing the Application without leave expired on 20 February 2025.
The defendant does not deny her legal responsibility under the mortgage and does not oppose a sale of the Property. However, she opposes the plaintiff's claim for an order for possession and instead seeks orders that the sale of the Property be conducted with 'judicial supervision'.
I heard the Application on 31 July 2025 and, having considered the affidavits and submissions filed by the parties and the further submissions made at the hearing of the Application, I was satisfied that:
(a) it is appropriate that the plaintiff have leave to bring the Application and that the time to do so be extended to the date it was filed, 4 April 2025;
(b) the plaintiff has complied with the procedural requirements for an application for summary judgment and made out a prima facie case;
(c) the defendant has not discharged her evidentiary burden of establishing that there is an arguable defence to the plaintiff's claim, an issue or question to be tried, or some other reason why there ought to be a trial of the action; and
(d) this is a clear case in which it is appropriate to enter summary judgment.
I gave brief oral reasons for my decision and made orders extending the time for bringing the Application, entering judgment for the plaintiff and requiring the defendant to deliver up possession of the Property to the plaintiff by 14 August 2025. I said I would publish more detailed reasons for my decision. These are those reasons.
Submissions and evidence relied on by the parties
In support of the Application, the plaintiff relied on written submissions filed on 6 May 2025 and affidavits of:
(a)Nishaaharan Easwarapadcham, a case manager employed by the plaintiff, sworn on 3 April 2025 (Easwarapadcham Affidavit);
(b)Cassandra Michelle Guy, a solicitor employed by the plaintiff's solicitors, sworn on 4 April 2025 (4 April 2025 Guy Affidavit), 29 April 2025 (29 April 2025 Guy Affidavit) and on 6 May 2025 (May 2025 Guy Affidavit); and
(c)Brooke Thomason, an employee of the plaintiff's solicitors, sworn on 4 April 2025 (Thomason Affidavit).
The defendant relied upon her affidavit sworn on 17 April 2025 (Chen Affidavit) and submissions and other materials filed on 15 May 2025 and 27 July 2025.
Procedural requirements and applicable legal principles relating to summary judgment
The procedural requirements for an application for summary judgment were summarised by Archer J[1] in Cologna Investments Pty Ltd v Caranna.[2]
[1] As her Honour then was.
[2] Cologna Investments Pty Ltd v Caranna [2023] WASC 368 (Cologna Investments) [27] (Archer J).
An application for summary judgment must be brought within 21 days after an appearance has been filed, or a later time with leave of the court.[3]
[3] O 14 r 1(1) RSC.
The 21-day limit to bring an application for summary judgment reflects the view that such applications should be brought promptly and at an early stage of the proceedings, before unnecessary expense is incurred. Where leave is required to bring an application out of time, the onus is on the applicant to demonstrate that the delay is justifiable in the circumstances. Any prejudice to the other party caused by the delay and the prospects of the application are also relevant factors.[4]
[4] Cologna Investments [26], [27.2]. See also Mineralogy Pty Ltd v Sino Iron (No 11) [2016] WASC 235 [4] (Chaney J); Deputy Commissioner of Taxation v Lafferty [2017] WASC 257 (Lafferty) [40] ‑ [41] (Tottle J); Westpac Banking Corporation v Anderson [2017] WASC 106 (Westpac Banking) [38] (Pritchard J).
In Gallo v Dawson,[5] McHugh J said, in the context of leave to extend time to appeal:
The discretion to extend time is given for the sole purpose of enabling the Court of Justice to do justice between the parties. This means that the discretion can be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant and refusal of the application for the extension of time.
[5] Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458, 459.
An application pursuant to O 14 RSC must be supported by an affidavit verifying the facts upon which the claim is based and stating that, in the deponent's belief, there is no defence to the claim.[6]
[6] O 14 r 2(1) RSC.
The principles that apply to an application for summary judgment are well established. The key principles were summarised by the Court of Appeal in Sutton Investments Pty Ltd v Realistic Investments Pty Ltd, as follows:[7]
Summary judgment will be granted only when there is no real question to be tried. The power to order summary judgment is one that should be exercised with great care: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99. It is only the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if it went to trial, that summary judgment ought properly be granted: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57]; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [46]; Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [24], [53] - [55].
[7] Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24].
The plaintiff bears the burden of persuading the court that the claim is a good one and there is no defence to it. If the plaintiff's affidavit or affidavits in support of the Application make out a prima facie case on these two matters, the evidentiary burden ordinarily passes to the defendant to show there is an arguable defence or some other reason there ought to be a trial of the action. A defendant seeking to demonstrate an arguable defence or some other reason why there ought to be a trial must condescend to particulars and provide sufficient details of their defence.[8]
[8] Westpac Banking [53] - [54], [103]. See also Lafferty [54] and the authorities referred to.
Leave to bring the Application out of time
The defendant filed an appearance on 30 January 2025. As such, the 21‑day time limit for bringing an application for summary judgment expired on 20 February 2025. The Application was filed 43 days later on 4 April 2025.
This is a relatively short delay, which is explained in the 4 April 2025 Affidavit. This included communications between the parties in which the defendant acknowledged responsibility for the loan, and as to whether the defendant would consent to judgment being entered against her and to an order for possession of the Property. As the defendant is self‑represented, it was explained to her that she would need to give any such consent in person before a judge of the court.
Ultimately, the defendant did not consent to judgment or to orders being made for possession and the plaintiff filed the Application.
I am satisfied on the evidence before me that, although there was a delay in bringing the Application, it is not an undue delay and was justifiable in the circumstances. The Application is still brought at an early stage of the proceedings and before a defence had been filed. There is no evidence of any prejudice to the defendant caused by the relatively short delay in bringing the Application.
I am satisfied it is appropriate that the plaintiff have leave to bring the Application. The time for bringing the Application should be, and is, extended to the date of filing.
The facts relevant to the plaintiff's claim and the Application
The following facts, verified by the Easwarapadcham Affidavit and the Thomason Affidavit, make up the essential elements of the plaintiff's claim.
Loan Agreement
The defendant and Mr Chang (Borrowers) entered into the Loan Agreement with the plaintiff on 23 September 2016 in respect of a home loan of $380,000 (Loan Amount).[9] The plaintiff advanced the Loan Amount to the Borrowers on about 27 October 2016.[10]
[9] Easwarapadcham Affidavit [5], [7(a)], 'B'.
[10] Easwarapadcham Affidavit [7(h)].
The Loan Agreement incorporated the plaintiff's Consumer Credit Contract Schedule and the plaintiff's Consumer Lending Terms and Conditions version 23 (Terms and Conditions).[11] Relevantly, pursuant to the terms of the Loan Agreement and the Terms and Conditions, the Borrowers:[12]
(a)are jointly and severally liable in respect of the loan.[13] That is, each of them is liable individually for the full amount of the loan as well as each being jointly liable with the other;
(b)agreed to repay the Loan Amount, together with interest at the rates provided, by 782 fortnightly payments;[14]
(c)would be in default of the Loan Agreement if they failed to make a payment by its due date;[15] and
(d)if the Borrowers were in default and failed to remedy the default within 30 days of being given notice of the default, the plaintiff could require the Borrowers to make immediate repayment of the full amount owing on the loan.[16]
Mortgage
[11] Easwarapadcham Affidavit [6], 'B'.
[12] Statement of claim [5]. See also Easwarapadcham Affidavit [7].
[13] Terms and Conditions, General Conditions cl 12, Easwarapadcham Affidavit 'B’, page 25.
[14] Loan Agreement, Easwarapadcahn Affidavit 'B'.
[15] Terms and Conditions, General Conditions cl 10, Easwarapadcham Affidavit 'B', pages 23 - 25.
[16] Terms and Conditions, General Conditions cl 10, Easwarapadcham Affidavit 'B', pages 23 - 25.
The mortgage the plaintiff seeks to enforce in these proceedings was registered on the title to the Property in favour of the plaintiff on 27 October 2016 with registration number N468513 (Mortgage),[17] as security for the Borrowers' obligations under the Loan Agreement.[18]
[17] Easwarapadcham Affidavit [7(d)], 'C'.
[18] Easwarapadcham Affidavit [9], 'C'.
The Mortgage incorporates the provisions in a Memorandum of Provisions filed and registered with Landgate, number I867952 (Memorandum).[19] The relevant provisions of the Memorandum are set out in the Statement of Claim.[20] Relevantly:
(a)the Borrowers agreed to make the loan repayments to the plaintiff on time;[21]
(b)the Borrowers would be in default of the Mortgage if they failed to repay any of the Loan Amount on time;[22]
(c)if the Borrowers were in default, the plaintiff could issue a notice to them of the default and, if the default is not remedied and continues for at least 30 days after service of the notice, the plaintiff could require the Borrowers (or either of them) to pay the whole amount owing under the Loan Agreement;[23]
(d)if a default event was not remedied within the time stated in the default notice the plaintiff would be entitled to possession of the Property;[24] and
(e)are jointly and severally liable in respect of their obligations under the Mortgage.[25]
Default relied upon by the plaintiff
[19] Easwarapadcham Affidavit [8], 'C'.
[20] Statement of Claim [7]. See also Easwarapadcham Affidavit [9].
[21] Memorandum cl 2.1; cl 2.3, Easwarapadcham Affidavit 'C'.
[22] Memorandum cl 7.1, Easwarapadcham Affidavit 'C'.
[23] Memorandum cl 7.2, Easwarapadcham Affidavit 'C'.
[24] Memorandum cl 7.3(a), Easwarapadcham Affidavit 'C'.
[25] Memorandum cl 11.1 (definition of ‘I’), cl. 11.2(a)(iii), Easwarapadcham Affidavit 'C'.
The plaintiff loaned $380,000 to the Borrowers pursuant to the Loan Agreement.[26]
[26] Loan Agreement, Easwarapadcham Affidavit [5], [7(a)], 'A'.
The Borrowers failed to pay amounts due under the Loan Agreement, which constituted a default. As at 30 January 2024, the Borrowers had failed to pay $61,902.20 due under the Loan Agreement and Mortgage.[27]
[27] Easwarapadcham Affidavit [10].
The plaintiff issued a notice of default dated 5 February 2024 (Default Notice)[28] to each of the Borrowers under the Loan Agreement and Mortgage as prescribed by each of those agreements and pursuant to s 88 of sch 1 of the National Consumer Credit Protection Act 2009 (Cth) (National Credit Code) and s 106 of the Transfer of Land Act 1893 (WA), requiring the Borrowers to remedy the default by paying the arrears of $61,902.20 by 15 March 2024.
[28] Easwarapadcham Affidavit [11]; Thomason Affidavit [2], 'A'.
The Default Notice stated, in effect, that if the default was not rectified by that time, the plaintiff may commence enforcement proceedings to take possession of the Property without further notice to the Borrowers.[29] The Borrowers did not repay the amount demanded and remedy the default within the time required.[30]
[29] Easwarapadcham Affidavit [11]; Thomason Affidavit 'A'.
[30] Easwarapadcham Affidavit [12].
On 10 May 2024, notice to vacate the Property and notice pursuant to s 81B(2) of the Residential Tenancies Act 1987 (WA) were given to the occupants of the Property.[31]
[31] Thomason Affidavit [3] - [4], 'B'.
The plaintiff commenced these proceedings on 30 July 2024 to seek orders for possession of the Property. It does not seek any orders in these proceedings for payment of money owed under the Loan Agreement.
The defendant's position in relation to the Application
The defendant is self-represented. As such, as is appropriate, I approached the documents in which she articulates her case and response to the Application with some flexibility.[32] At the same time, I must ensure that any latitude I give to the defendant does not deprive the plaintiff of its right to procedural fairness and a fair hearing.[33]
[32] See Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536 - 537 (Kirby P), 543 (Hope and Samuels JJA agreeing); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J).
[33] Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51]; MTI v SUL [No 2] [2010] WASCA 58 [42] - [43] (Newnes JA with whom Pullen and Buss JJA agreed); Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10].
In considering the defendant’s submissions and conducting the hearing of the Application, I was also mindful that the defendant’s first language is Mandarin. Although the defendant speaks and presents as having a sound understanding of English, an interpreter was arranged for the hearing of the Application to assist the defendant and the court, where required.
The defendant does not dispute that she entered into the Loan Agreement and Mortgage, nor her legal responsibility for the loan or that the Property should be sold. However, she expressed concerns about Mr Chang not being included in the proceedings, for her safety, any ramifications from those presently occupying the Property, and the risk of the Property being sold for less than market value.
The defendant's position is, in summary:
1.In February 2018, Mr Chang withdrew $300,000 from their joint bank account, clearing the account.
2.Upon the defendant returning to Perth from a visit overseas, in March 2018, the locks on the Property had been changed. She believes the locks were changed at Mr Chang's direction. This has prevented the defendant from accessing the Property. Since then, she has had no access to the Property, it is occupied by others, and she has been forced to find alternative accommodation. She states that she does not know who is currently occupying the Property and is concerned there is a risk of retaliation or harm to her from the occupants if orders are made for possession of the Property.
3.The defendant has had no contact with Mr Chang since the second half of 2017. She does not know his whereabouts or whether he is still in Australia. She believes he may be overseas.
4.Since March 2018, she has made repeated contact with the bank and taken other steps to try and resolve the issues with the loan and Mortgage.
5.The defendant expresses concerns that the proceedings have been issued solely against her when the mortgage is held jointly by her and Mr Chang. She contends that both parties should share responsibility for the debt and, as a matter of fairness, Mr Chang should have been joined as a party to, and have been served, with the proceedings.
6.The defendant also expressed concern that the exclusion of Mr Chang as a party to the proceeding may render her vulnerable to future legal action by him in respect of the Property.
7.The defendant is also concerned that if the Property is sold by the plaintiff as mortgagee in possession 'without Court oversight', there is a risk of the Property being sold below market value.
The defendant states she has never sought to evade her obligations and has made continuous efforts to resolve the situation, but due to the disappearance of the co‑owner, Mr Chang, and concerns for her safety if she were to agree to orders for possession and sale of the Property she has had to 'respond defensively'.
She contends that the sale should proceed under 'proper judicial supervision, by way of judicial sale, and not through unilateral possession or sale orders obtained via summary judgment'.
Determination
For the reasons set out earlier in these reasons, leave was granted to the plaintiff to bring the Application out of time. I was also satisfied on the evidence before me, as outlined, that the plaintiff has complied with the other procedural requirements for an application for summary judgment and has made out a prima facie case that it is entitled to possession of the Property under the terms of the Loan Agreement and Mortgage.
Mr Easwarapadcham and Ms Thomason have sworn affidavits deposing to the facts verifying the plaintiff's claim. Mr Easwarapadcham has deposed to his belief on behalf of the plaintiff that there is no defence to the claim.
In my view, the plaintiff's case and entitlement to an order for possession of the Property is clearly established on the evidence before the court. The Borrowers defaulted under the terms of the Loan Agreement and Mortgage by failing to make repayments when they were due and payable. Default Notices have been served on the Borrowers. The default has not been remedied.
Whilst I have some sympathy for the defendant, who appears to have been left to deal with the Borrowers' default of the Loan Agreement and Mortgage, the materials filed and relied upon by her do not disclose any facts that may constitute an arguable defence to the plaintiff's claim, that there is an issue or question to be tried or some other reason why the action should proceed to trial.
In the circumstances deposed to in the May 2025 Guy Affidavit, the plaintiff has made extensive searches to locate Mr Chang and to ascertain an address for him at which proceedings, if issued, could be served. However, the plaintiff's efforts have been unsuccessful. The defendant also states in her evidence that she believes Mr Chang is overseas but does not know his whereabouts.
The plaintiff has stated that it is willing to commence proceedings and seek orders against Mr Chang if and when he is located and returns to Australia.[34] However, as submitted on behalf of the plaintiff, the Borrowers are jointly and severally liable for the loan and their obligations under the Loan Agreement and Mortgage. As such, the plaintiff is entitled to enforce its rights under the Mortgage solely against the defendant. As Mr Chang is not a party to these proceedings there is no obligation on the plaintiff to serve any documents relating to the proceedings on him.
[34] May 2025 Guy Affidavit [15].
As to the defendant's concerns as to any claims that may be made against her, or other ramifications of an order being made for possession of the Property, those are not matters that give rise to a defence to the plaintiff's claim. It is not apparent what claims Mr Chang may have. He too is jointly and severally liable under the terms of the Loan Agreement and Mortgage. In any event, in the absence of an arguable defence or another reason why there ought to be a trial of the action, the plaintiff, having established a prima facie case, is entitled to an order for possession of the Property.
In relation to the present occupants of the Property, any order for possession made in favour of a mortgagee against one proprietor may be enforced against any third party claiming an interest in the land. As submitted on behalf of the plaintiff, a mortgagee has the same rights and remedies at law and in equity as if legal estate in the land had been actually vested in the mortgagee. A mortgagee may bring an action for ejectment under its statutory rights pursuant to its registered mortgage to recover land, in the same manner as an action under its contractual rights in a mortgage.[35] A mortgagee's action for possession of land concerns the better right to possession as between the mortgagor and the mortgagee. As observed by Young JA in Hanshaw v National Bank Ltd, [36] the rights of any third person who may be interested in the land such as a tenant or other occupant are irrelevant.
[35] Transfer of Land Act 1893 (WA), s 116.
[36] Hanshaw v National Australia Bank Ltd [2012] NSWCA 100 [34].
As to the issues raised by the defendant about the risk of any sale of the Property being at less than market value, and that sale should be subject to the court's supervision, there is no basis upon which such an order may be made. Orders are routinely made in actions seeking orders for possession by a mortgagee in the terms sought by the plaintiff. The court's supervisory jurisdiction in relation to a mortgagee sale would only be enlivened in relation to such a sale where there is evidence of bad faith, corruption or collusion with the purchaser or of an actual intention to defraud the mortgagor, and subject to a bona fide buyer's right to have a sale contract completed.[37] As submitted, on behalf of the plaintiff, there is no evidence of bad faith, corruption or collusion by the plaintiff, and no more than mere speculation as to a possible sale of the Property at a value other than market value.
[37] Forsyth v Blundell (1973) 129 CLR 477, 426 ‑ 427. See also Rockett v Evans [2008] QSC 227 [9] ‑ [13]; Commonwealth Bank of Australia v Hardie [2004] WASC 186 [21]; Carver v Westpac Banking Corporation [2002] NSWSC 431 [13].
I recognise that summary judgment should only be awarded in the clearest of cases. I am satisfied that this is such a case, and that it is appropriate to grant summary judgment.
Conclusion and orders
For these reasons, I was satisfied that the time for bringing the Application should be extended to 4 April 2025 and I made an order to that effect. I granted the plaintiff's application for summary judgment and made an order that the defendant deliver up vacant possession of the Property to the plaintiff.
As to the time by which the defendant is to deliver up possession of the Property, the plaintiff sought an order that the plaintiff do so within 14 days of the date of the orders. This was not opposed by the defendant. Accordingly, I made an order requiring the defendant to deliver up vacant possession of the Property to the plaintiff within 14 days of the date of the orders, being 14 August 2025.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SC
Associate to Master Russell
4 AUGUST 2025
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