Australia and New Zealand Banking Group Limited v Gebarski - [2025] WASC 416

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED -v- GEBARSKI [2025] WASC 416
CORAM:   MASTER RUSSELL
HEARD:   24 SEPTEMBER 2025
DELIVERED          :   24 SEPTEMBER 2025
PUBLISHED           :   1 OCTOBER 2025
FILE NO/S:   CIV 2289 of 2024
BETWEEN:   AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
Plaintiff
AND
ADAM WALDEMAR GEBARSKI
First Defendant
MALGORZATA GEBARSKA
Second Defendant

Catchwords:

Practice and procedure - Summary judgment - Mortgage action - Application for possession of mortgaged property - 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)

Result:

Application granted
Summary judgment entered for the plaintiff
Order for possession of mortgaged property

Category: B

Representation:

Counsel:

Plaintiff	:	CM Guy
First Defendant	:	No appearance
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	TG Legal & Technology
First Defendant	:	In Person
Second Defendant	:	In Person

Case(s) referred to in decision(s):

Deputy Commissioner of Taxation v Lafferty [2017] WASC 257
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
Westpac Banking Corporation v Anderson [2017] WASC 106

MASTER RUSSELL:

Overview

The first defendant, Adam Waldemar Gebarski, is the registered proprietor of the land and property situated in Maylands, Western Australia, described as Lot 181 on Plan 22899 and being the whole of the land comprised in Certificate of Title Volume 2144 Folio 502 (Property).
The plaintiff, Australia and New Zealand Banking Group Limited, entered into:
(a)a home loan agreement with the first defendant on about 22 July 2011 (Home Loan Agreement), under which the first defendant borrowed $176,241.12, from the plaintiff; and
(b)a business loan agreement with the second defendant, Malgorzata Gebarska, on about 29 May 2015 (Business Loan Agreement).
Pursuant to the terms of the Business Loan Agreement, the second defendant borrowed $238,707 from the plaintiff and the plaintiff also provided the second defendant with two credit facilities (overdrafts) with credit limits of $200,000 and $100,000 respectively.
The first defendant secured all money owing under the Home Loan Agreement by an existing first registered mortgage over the Property in favour of the plaintiff, registered on the title to the Property on 1 September 1999 bearing number H211274 (First Mortgage).
By a deed of guarantee dated 13 November 2015 (Guarantee), the first defendant guaranteed the second defendant’s obligations under the Business Loan Agreement, and secured all money owing under the Business Loan Agreement by an existing second registered mortgage over the Property in favour of the plaintiff, registered on the title of the Property on 23 November 2011 bearing registration number L790985 (Second Mortgage).
The plaintiff commenced these proceedings against the first and second defendants in October 2024, claiming payment of the amounts owing under the Home Loan Agreement, Business Loan Agreement, Guarantee, First Mortgage and Second Mortgage, and an order for possession of the Property.
Orders were made on 12 February 2025 for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Australia and New Zealand Banking Group Limited v Gebarski

Details

AGLC: Australia and New Zealand Banking Group Limited v Gebarski [2025] WASC 416
Case: [2025] WASC 416
Decision Date: 1 OCTOBER 2025

CaseChat Overview and Summary

Australia and New Zealand Banking Group Limited (ANZ) applied for summary judgment against the Gebarskis, seeking possession of two properties and payment of outstanding loan amounts. The first defendant, Mr Gebarski, had defaulted on a home loan and a business loan, leading to ANZ’s application. The primary legal issue was whether ANZ had established a prima facie case for summary judgment and whether the Gebarskis had presented an arguable defence or another reason for a trial. The court considered ANZ's evidence, which included the loan agreements, the Gebarskis' default, and the mortgages securing the loans. The Gebarskis did not provide sufficient details of their defence to rebut ANZ’s claims. The court held that ANZ had met the burden of proving a prima facie case and that the Gebarskis had failed to demonstrate an arguable defence or another reason for a trial.

The court emphasised that the plaintiff must persuade the court that the claim is valid and there is no defence. If the plaintiff’s evidence establishes a prima facie case, the burden shifts to the defendant to show there is an arguable defence or another reason for a trial. In this case, ANZ’s evidence was unchallenged and demonstrated the Gebarskis' default on their loan obligations. The Gebarskis did not provide sufficient detail to counter ANZ’s claims. Therefore, the court granted ANZ’s application for summary judgment. The final orders included possession of the properties, payment of the outstanding loan amounts, and costs.

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

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 in support of the Application makes out a prima facie case on these two matters, the evidentiary burden passes to the defendant to show there is an arguable defence or another reason there ought to be a trial.[4][4] Westpac Banking Corporation v Anderson [2017] WASC 106 [53] - [54], [103]. See also Deputy Commissioner of Taxation v Lafferty [2017] WASC 257 [54] (Tottle J) and the authorities referred to. 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.[5] [5] Deputy Commissioner of Taxation v Lafferty [54]. The following facts, verified by the unchallenged evidence in the affidavits filed by the plaintiff, make up the essential elements of the plaintiff's claim. On or about 22 July 2011, the plaintiff and the first defendant entered into the Home Loan Agreement,[6] pursuant to which the plaintiff loaned the first defendant $176,241.12 (Home Loan Amount).[7][6] Statement of Claim (SOC) [3]; May Affidavit [5],[21] ' B'.[7]SOC [7(a)]; May Affidavit [9(a)], [21] 'B'. The first defendant agreed to repay the Home Loan Amount to the plaintiff plus accrued interest by 360 monthly payments of principal and interest instalments, in accordance with the terms and conditions of the Home Loan Agreement.[8][8] SOC [7(e)]; May Affidavit [7], [9(d)(i)], [9(e)], [21] 'B'. Repayment of all money payable under the Home Loan Agreement and performance of the first defendant’s obligations under it are secured by the First Mortgage.[9][9] SOC [7(g)]; May Affidavit [9(g)], [21] 'E'. The plaintiff advanced the Home Loan Amount to the first defendant on about 22 July 2011.[10][10] SOC [7(k)(i)]; May Affidavit [9(k)(i)]. On or about 29 May 2015, the plaintiff and the second defendant entered into the Business Loan Agreement, pursuant to which the plaintiff provided the second defendant a loan amount of $238,707 (Business Loan Amount) and two credit facilities with credit limits of $200,000 (First Overdraft Amount) and $100,000 (Second Overdraft Amount).[11][11] SOC [7(b) and (c))]; May Affidavit [6], [8], [9(b)] - [9(d)]. The second defendant agreed to repay the Business Loan Amount and any amount in excess of the facility limit of the First Overdraft Amount and the Second Overdraft Amount, to the plaintiff in accordance with the terms and conditions of the Business Loan Agreement.[12][12] SOC [7(f)]; May Affidavit [9(f)]. By the Guarantee, repayment of all money payable under the Business Loan Agreement and performance of the second defendant’s obligations under it are guaranteed by the first defendant,[13] and secured by the Second Mortgage.[14][13] SOC [8(b) and (c)]; May Affidavit [10].[14] SOC [8(a)]; May Affidavit [10(d)], [21] 'F'. The plaintiff advanced the Business Loan Amount and made available the First Overdraft Amount and Second Overdraft Amount to the second defendant on or about 29 May 2015.[15]