Australia and New Zealand Banking Group Limited v Tristar Group Pty Ltd - [2025] WASC 237

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED -v- TRISTAR GROUP PTY LTD & Ors [2025] WASC 237
CORAM:   MASTER RUSSELL
HEARD:   17 JUNE 2025
DELIVERED          :   17 JUNE 2025
PUBLISHED           :   18 JUNE 2025
FILE NO/S:   CIV 1077 of 2019
BETWEEN:   AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
Plaintiff

AND

TRISTAR GROUP PTY LTD
First Defendant

TRISTAR GROUP PTY LTD as trustee for TERRY SPIRO FAMILY TRUST
Second Defendant

TERRY PETER SPIRO
Third Defendant

ELLEN ANN SPIRO
Fourth Defendant

GIOVANNI MAURIZIO CARRELLO as trustee of the PROPERTY OF TERRY PETER SPIRO AND ELLEN ANN SPIRO, bankrupts
Fifth 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 - Strength of the plaintiff's case - Where strict compliance with the court rules would work an injustice on the party seeking leave to apply out of time - Turns on own facts

Bankruptcy - Bankruptcy Act 1966 (Cth) s 58(1)(a) - Whether undischarged bankrupt has standing to be heard on application for summary judgment for possession of property - Effect of sequestration order on bankrupt's standing to defend action for possession of mortgaged property and to oppose application for summary judgment

Legislation:

Bankruptcy Act 1966 (Cth) s 58(1)(a), s 60(2), s 60(3), s 116(1)(a), s 116(1)(b)

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

Result:

Application granted
Summary judgment entered for the plaintiff

Order for possession of mortgaged property

Category: B

Representation:

Counsel:

Plaintiff	:	W C J Zappia
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	In Person
Fourth Defendant	:	In Person
Fifth Defendant	:	No appearance

Solicitors:

Plaintiff	:	Thomson Geer - Perth
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	In Person
Fourth Defendant	:	In Person
Fifth Defendant	:	No appearance

Cases referred to in decision(s):

Australia and New Zealand Banking Group Ltd v State of Western Australia [2023] WASC 409
Bendigo Bank Ltd v Demaria [2001] VSC 218
Cirillo v Citicorp Australia Ltd [2004] SASC 293
Cologna Investments Pty Ltd as trustee for the P. and D. Panizza Family Trust v Caranna [2023] WASC 368
Commonwealth Bank of Australia v Terpou [1998] WASC 345
Deputy Commissioner of Taxation v Lafferty [2017] WASC 257
Farrow Mortgage Services Pty Ltd v Winfield [1992] 2 Qd R 282
Frigger v Trenfeld (No 10) [2021] FCA 1500
Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458
Mineralogy Pty Ltd v Sino Iron (No 11) [2016] WASC 235
National Australia Bank Ltd v Bhatti [2010] NSWSC 1202
National Australia Bank v Strik [2009] NSWSC 184
Owners of Majestic Rise and Majestic Crest Apartments Strata Plan 40793 v Spiro [2023] FCA 722
Sivanantha v Angelie Pty Ltd [2021] VSCA 333
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
Westpac Banking Corporation v Anderson [2017] WASC 106
Westpac Banking Corporation v Hines [2020] VSC 715
Westpac v Webb [2019] VSC 180
Wright v Brown [2023] WASC 245

MASTER RUSSELL:

Introduction

The plaintiff, Australia and New Zealand Banking Group Ltd (ANZ) commenced these proceedings seeking orders for mortgagee possession of two properties known as:
1.Unit 26, 38 Fielder Street, East Perth, Western Australia, which is more particularly described as Lot 26 on Strata Plan 54685 and being the whole of the land comprised in Certificate of Title Volume 2714 Folio 426 (Fielder Street Property); and
2.Unit 29, 20 Royal Street, East Perth, Western Australia, which is more particularly described as Lot 29 on Strata Plan 40793 and being the whole of the land comprised in Certificate of Title Volume 2510 Folio 629 (Royal Street Property).
As observed by ANZ, so far as the Fielder Street Property is concerned, these proceedings were rendered nugatory once that property became vacant. In any event, subsequent to the de-registration of its registered proprietor and the first defendant in these proceedings, Tristar Group Pty Ltd, the Fielder Street Property was the subject of separate proceedings before Solomon J, which ultimately resulted in orders being made in favour of ANZ.[1]
[1] See Australia and New Zealand Banking Group Ltd v State of Western Australia [2023] WASC 409.
The third and fourth defendants, Terry Peter Spiro and Ellen Ann Spiro, are the registered proprietors of the Royal Street Property. ANZ seeks orders for possession of the Royal Street Property pursuant to the terms of a guarantee dated 14 September 2014, a home loan agreement dated 18 September 2014, and a mortgage registered on the title to the Royal Street Property on 13 October 2014.
By chamber summons filed on 3 August 2023, as amended on 11 June 2025, ANZ applies for summary judgment against Mr and Mrs Spiro, pursuant to O 14 of the Rules of the Supreme Court 1971 (WA) (RSC) in relation to its claim for possession of the Royal Street Property (Application).
The Application was originally listed for hearing on 21 February 2024, but was adjourned sine die pending the outcome of a complaint made by Mr and Mrs Spiro to the Australian Financial Complaints Authority (AFCA) on 20 February 2024. The complaint process has been concluded and the Application was relisted for hearing.
I heard the Application on 17 June 2025. Having considered the affidavits and submissions filed, and the further submissions made at the hearing of the Application, I was satisfied that:
(a)Mr and Mrs Spiro, as undischarged bankrupts, do not have standing to defend the proceeding or to adduce evidence or make submissions in opposition to the Application;
(b)it was appropriate that ANZ have leave to bring the Application and that the time to do so be extended to the date it was filed;
(c)ANZ had complied with the procedural requirements for an application for summary judgment and made out a prima facie case;
(d)there is no arguable defence to ANZ's claim, no issue or question to be tried, or other reason why there ought to be a trial of the action; and
(e)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 ANZ and requiring the defendant to deliver up possession of the Royal Street Property to ANZ within 28 days of the date of the orders.
I said I would publish more detailed reasons for my decision. These are those reasons.

The materials relied upon

In support of the Application, ANZ relies on its outline of submissions filed on 24 November 2023, and affidavits of:
(a)Nathan Carrettin affirmed on 31 July 2023, filed on 3 August 2023 (Carrettin Affidavit);
(b)Ezra May affirmed and filed on 11 June 2025 (May Affidavit); and
(c)Philip Mark Kaunitz affirmed and filed on 16 June 2025 (Kaunitz Affidavit).
Mr and Mrs Spiro filed an affidavit of Mr Spiro sworn and filed on 20 September 2023, and outlines of submissions filed on 29 November 2023 and 13 June 2025.
ANZ submitted that Mr and Mrs Spiro have no standing to defend the proceedings or the Application, both having been made bankrupt and their beneficial interests in the Royal Street Property, and any chose‑in‑action the subject of their counterclaim, having vested in their trustee in bankruptcy, the fifth defendant, Giovanni Maurizio Carrello.

The third and fourth defendants' standing

After hearing from the parties on the question of Mr and Mrs Spiro's standing, I ruled that Mr and Mrs Spiro have no standing to defend the proceedings or the Application, or to make submissions, tender evidence or to be heard in relation to the Application.
The facts and principles relevant to Mr and Mrs Spiro's standing are set out in the Carrettin Affidavit, the May Affidavit and ANZ's outline of submissions, and may be summarised as follows.
Mr and Mrs Spiro are the registered proprietors of, and reside in, the Royal Street Property.[2]
[2] Carrettin Affidavit [5(b)], 'ANZ-2' [58]; May Affidavit [16].
On 28 November 2022:
(a)Mr and Mrs Spiro were made bankrupt under the Bankruptcy Act 1966 (Cth) (Act) by sequestration order made by a registrar of the Federal Court of Australia on a creditor's petition for failure to comply with a bankruptcy notice; and
(b)Mr Carrello was appointed trustee of their bankrupt estates.[3]
[3] Carrettin Affidavit [18], 'ANZ-13'.
An application made by Mr and Mrs Spiro to set aside the bankruptcy notice was refused by a registrar of the Federal Court on 29 July 2022. Mr and Mrs Spiro applied for a review of the sequestration order and, on 30 June 2023, orders were made by a judge of the Federal Court affirming the sequestration order made by the registrar on 28 November 2022. Mr and Mrs Spiro's application for review was otherwise dismissed.[4]
[4] Carrettin Affidavit [22], 'ANZ-15'; Owners of Majestic Rise and Majestic Crest Apartments Strata Plan 40793 v Spiro [2023] FCA 722 (Banks-Smith J) (Owners of Majestic Rise v Spiro).
Recent bankruptcy searches conducted in relation to Mr and Mrs Spiro, confirm that, in each case, their bankruptcy is continuing, and they are an undischarged bankrupt.[5]
[5] May Affidavit [17], 'EM-7', 'EM-8'.
Upon becoming bankrupt, by s 58(1)(a) of the Act, all of Mr and Mrs Spiro's property vested in Mr Carrello as their trustee in bankruptcy and, pursuant to s 116(1)(a) and (b) of the Act, is property divisible amongst their creditors. This includes their beneficial interest in the Royal Street Property and their counterclaim in this proceeding.[6]
[6] Cirillo v Citicorp Australia Ltd (2004) 236 LSJS 24; [2004] SASC 293 [75] - [79], [86] (Perry, Bleby and Gray JJ), and the authorities referred to. See also Wright v Brown [2023] WASC 245 [51] ‑ [54] (Archer J).
On 22 December 2022, pursuant to s 60(2) and (3) of the Act, ANZ gave notice to Mr Carrello of its claim against Mr and Mrs Spiro and of Mr and Mrs Spiro's counterclaim against ANZ.[7] Mr Carrello did not make an election to proceed with the counterclaim within 28 days of receiving ANZ's notice. As such, by operation of s 60(3) of the Act, the counterclaim is deemed to have been abandoned.
[7] Carrettin Affidavit [19] - [20], 'ANZ-14'.
As submitted on behalf of ANZ, it is well established that, because of the operation of s 58(1)(a) of the Act, a person who is bankrupt has no beneficial interest in the property vested in their trustee in bankruptcy, no interest in proceedings for possession of the property and, as such, no standing to be heard in relation to those proceedings.[8] The fact that Mr and Mrs Spiro remain the registered proprietors of the Royal Street Property does not alter the analysis. They have no more than a bare legal interest in the Royal Street Property that they hold for the benefit of Mr Carrello in his capacity as their trustee in bankruptcy.[9]
[8] See Westpac Banking Corporation v Hines [2020] VSC 715 [30] - [37] (citing Westpac v Webb [2019] VSC 180 [20] - [21]; Rogers v Asset Loan Co Pty Ltd & Ors [2006] FCA 34 [52]); National Australia Bank Ltd v Bhatti[2010] NSWSC 1202 [5] ‑ [8] (citing Farrow Mortgage Services Pty Ltd v Winfield [1992] 2 Qd R 282 (Farrow v Winfield), 285; Bendigo Bank Ltd v Demaria [2001] VSC 218 (Bendigo v Demaria) [18]; Commonwealth Bank of Australia v Terpou [1998] WASC 345; National Australia Bank v Strik [2009] NSWSC 184 [9] ‑ [10]).
[9] See Farrow v Winfield 285; Bendigo v Demaria [18]; Frigger v Trenfeld (No 10) [2021] FCA 1500 [142]; Sivanantha v Angelie Pty Ltd [2021] VSCA 333 [30] - [31].
Mr Carrello is on notice of the Application. He has not entered an appearance, and has stated he does not wish to be heard, provided no adverse costs order is sought against him.[10] In a letter sent to ANZ's solicitors dated 13 June 2025, Mr Carrello stated that he has no position in relation to the orders sought for summary judgment against Mr and Mrs Spiro and he has no objection to orders being granted for possession of the Royal Street Property, which in his opinion is in the interests of creditors.[11]
[10] Carrettin Affidavit [60] - [61], 'ANZ-28'; May Affidavit [9] - [12], 'EM-2' - 'EM-4.'
[11] Kaunitz Affidavit [6], 'PMK-1' page 6.
Those orders stand and, it follows that, Mr and Mrs Spiro do not have standing to oppose the Application. The facts and circumstances of this case do not fall within any of the relevant exceptions. The facts and circumstances of this case do not fall within any of the relevant exceptions.
It is for those reasons that I ruled that Mr and Mrs Spiro do not have standing to appear and make submissions or to tender evidence in opposition to the Application, which includes the application for leave to bring the summary judgment application out of time and the substantive summary judgment application. This was accepted by Mr and Mrs Spiro, although they maintain the sequestration orders were made in error, despite the decision in Owners of Majestic Rise v Spiro.[12]
[12] [2023] FCA 722.
Even though there is no opposition to the Application, I must still be satisfied that the procedural requirements have been met, consider whether or not leave to bring the Application out of time should be granted and whether it is appropriate to grant summary judgment and the orders sought for possession of the Royal Street Property.

Procedural requirements and applicable legal principles

The procedural requirements for an application for summary judgment were summarised by Archer J in Cologna Investments Pty Ltd as trustee for the P. and D. Panizza Family Trust v Caranna.[13]
[13] Cologna Investments Pty Ltd as trustee for the P. and D. Panizza Family Trust 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.[14]
[14] 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 proceeding, before unnecessary expense is incurred. Where leave is required to bring the 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.[15]
[15] 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 [38] (Pritchard J).
In Gallo v Dawson,[16] 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.
[16] Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458, 459.
An application for summary judgment 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.[17]
[17] O 14 r 2(1) RSC.
The power to grant summary judgment should be exercised with great care. Summary judgment should only be granted in the clearest of cases. As the Court of Appeal said in Sutton Investments Pty Ltd v Realistic Investments Pty Ltd:[18]
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 in 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].
[18] Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24].
The plaintiff bears the legal burden of persuading the court that its claim is a good one and that 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.[19]
[19] Westpac Banking Corporation v Anderson [53] - [54], [103]. See also Lafferty [54] and the authorities referred to.
In this case, for the reasons outlined, the defendants do not have standing to adduce evidence in opposition to the Application.

Leave to bring the Application out of time

Mr and Mrs Spiro entered an appearance on 22 February 2019. The Application was not filed until 3 August 2023, approximately four and a half years after the time provided for bringing an application for summary judgment. This is a significant delay.
Mr Carrettin deposes to the reasons for the delay in making the Application,[20] which are summarised in ANZ's submissions, as follows.
[20] Carrettin Affidavit [65] - [73].
Until Mr and Mrs Spiro became bankrupt in December 2022 and a liquidator was appointed to the first and second defendants in late January 2023, the parties were progressing the proceedings in the usual course to trial.
The appointment of Mr Carello as trustee in bankruptcy of Mr and Mrs Spiro, and of the liquidator to the first and second defendants, brought about a change of circumstances and legal position with respect to the matters, the subject of the proceedings in that:
(a)the liquidator disclaimed the Fielder Street Property and elected not to pursue the first and second defendants' claims in the proceedings;
(b)Mr Carrello elected not to pursue Mr and Mrs Spiro's claims in the proceedings;
(c)separate proceedings were required to deal with the disclaimer of the Fielder Street Property;
(d)Mr Carrello was joined as a party to the proceedings; and
(e)Mr and Mrs Spiro filed their application for review of the sequestration orders, the decision in relation to which was delivered, as outlined, on 30 June 2023.
ANZ was required to obtain legal advice and consider its position with respect to the proceedings, having regard to the matters outlined in the preceding paragraph. Having regard to the legal advice received, amongst other things, ANZ filed an application to amend the writ and the statement of claim and to join the fifth defendant as a party to the proceedings. It did that on 19 May 2023.
On 31 May 2023, orders were made joining Mr Carrello as fifth defendant in the proceedings and granting ANZ leave to amend its writ. An amended writ of summons and indorsed statement of claim was filed on 8 July 2023.

The hearing of the Application was adjourned sine die pending determination of Mr and Mrs Spiro's complaint to AFCA, which concluded in February 2025.
Although, there has been a significant delay between the time Mr and Mrs Spiro entered their appearance and the Application being filed, I am satisfied that, in the circumstances of this case, it is appropriate to extend the time for bringing the Application. As outlined, the circumstances have changed significantly following the appointment of Mr Carrello as trustee in bankruptcy of Mr and Mrs Spiro's bankrupt estates. Time elapsed pending the outcome of Mr and Mrs Spiro's application for a review of the sequestration orders and it was necessary for ANZ to apply to join Mr Carrello as a defendant and amend its writ and statement of claim.
In any event, I am satisfied that this is a case in which the interests of justice require an extension of time, and it is appropriate to exercise the discretion in favour of the plaintiff. The time for bringing the Application should be extended to the date of filing. This is because to require strict compliance with the rules in this case would work an injustice upon ANZ. For the reasons set out in the following sections of these reasons, this is a clear case in which summary judgment should be entered in favour of the plaintiff.
ANZ's case is strong. Mr and Mrs Spiro have no standing to defend the claim, or to oppose the Application. As referred to earlier in these reasons, the beneficial interest in the Royal Street Property is vested in Mr Carrello as trustee in bankruptcy. He has elected not to defend the proceedings in his capacity as trustee or to pursue the counterclaim, and has confirmed he has no objection to the orders sought for possession of the Property.
There is no reason why this matter should proceed to trial. In all the circumstances, it would not be in the interests of justice to allow it to do so.

The facts relevant to the plaintiff's claim and the Application

The following facts verified by the affidavits filed in support of the Application make up the essential elements of ANZ's claim.

Business Facility Agreement and Business Loan Facility

On about 18 September 2014, ANZ and the first and second defendants, Tristar Group Pty Ltd in its own capacity and as trustee for the Terry Spiro Family Trust (together Tristar), entered into a loan agreement by executing a document titled 'Letter of Offer' dated 3 September 2014 (Business Facility Agreement).[21]
[21] Carrettin Affidavit [24], 'ANZ-16'.
The Business Facility Agreement was signed by Blake Whitby, Manager, on behalf of ANZ and by Mr and Mrs Spiro on behalf of Tristar, and incorporated the Finance Conditions of Use, ANZ Business Banking, 17 January 2014 (Business Terms and Conditions).[22] The relevant provisions of the Business Terms and Conditions are set out in the statement of claim indorsed on the amended writ.[23]
[22] Carrettin Affidavit [25], 'ANZ-17'.
[23] Amended writ filed on 8 July 2023, statement of claim (Statement of Claim) [7]. See also Carrettin Affidavit [26], [29].
Pursuant to the Business Facility Agreement, ANZ provided Tristar with an ANZ Business Loan Facility (Business Loan Facility) with a limit of $350,000 for a term of 15 years commencing from the first Drawdown Date, as defined in the Business Facility Agreement.
The securities schedule to the Business Facility Agreement[24] provides that the Business Loan Facility, and all amounts payable under it, were to be secured by a guarantee and indemnity (limited to $350,000) to be given by Mr and Mrs Spiro in favour of ANZ in respect of Tristar's obligations, and a first registered mortgage given by Mr and Mrs Spiro over the Royal Street Property.
[24] Carrettin Affidavit [24], 'ANZ-16' page 176.
In addition to signing the acceptance and consent of the Business Facility Agreement on behalf of Tristar on 18 September 2014, Mr and Mrs Spiro signed the guarantor acknowledgement in their capacities as guarantors of the Business Loan Facility.[25]

Guarantee

[25] Carrettin Affidavit [24], 'ANZ-16' pages 180 - 181.

On 18 September 2014, Mr and Mrs Spiro entered into an Individual Guarantee and Indemnity in respect of the Business Loan Facility (Guarantee).[26] Pursuant to the terms of the Guarantee, Mr and Mrs Spiro guaranteed that Tristar would pay to ANZ all money owing to it under the Business Loan Facility, up to a limit of $350,000 plus fees, charges, expenses, costs and interest.[27]
[26] Carrettin Affidavit [27], 'ANZ-18'.
[27] As provided in cl 2.2(a)(ii) of the Guarantee.
The relevant terms of the Guarantee are set out in the Statement of Claim.[28]

Home Loan Agreement

[28] Statement of Claim [8]. See also Carrettin Affidavit [28], [29].

Mr and Mrs Spiro also entered into a home loan agreement with ANZ on 18 September 2014 in respect of a home loan in the amount of $478,085 (Home Loan Agreement),[29] which incorporated ANZ's Consumer Lending Terms and Conditions version 20 date 12 March 2014 (Consumer Lending Terms).[30] The relevant terms of the Consumer Lending Terms are set out in the Statement of Claim.[31]

Royal Street Mortgage

[29] Carrettin Affidavit [40], 'ANZ-22'.

[30] Carrettin Affidavit [41], 'ANZ-23'.

[31] Statement of Claim [10]. See also Carrettin Affidavit [42].

The mortgage ANZ seeks to enforce in these proceedings was registered on the title to the Royal Street Property in favour of ANZ on 13 October 2014 (Royal Street Mortgage),[32] as security for:
(a)Mr and Mrs Spiro's obligations under the Guarantee; and
(b)Mr and Mrs Spiro's obligations under the Home Loan Agreement.
[32] Carrettin Affidavit [5(b)], 'ANZ-2'. A copy of the Royal Street Mortgage is attached to the Carrettin Affidavit [43], 'ANZ-24'.
The Royal Street Mortgage incorporates the provisions in a Memorandum of Common Provisions filed and registered with Landgate, number 1867952 (Memorandum).[33] The relevant provisions of the Memorandum are set out in the Statement of Claim.[34]

Default relied upon by ANZ

[33] Carrettin Affidavit [44], 'ANZ-25'.

[34] Statement of Claim [14]. See also Carrettin Affidavit [45], [47], [48].

ANZ loaned money to Tristar pursuant to the Business Facility Agreement and to Mr and Mrs Spiro pursuant to the Home Loan Agreement.[35]
[35] Carrettin Affidavit [30], [46].
Each failed to pay amounts due under those agreements, which constituted a default under each agreement.[36] As at 13 April 2018, Tristar had failed to pay $45,092.45 due under the Business Facility Agreement. As at 31 October 2018, Mr and Mrs Spiro had failed to pay $65,149.86 due under the Home Loan Agreement.
[36] Carrettin Affidavit [26], [29], [30], [31], [42], [45], [46], [47], 'ANZ-17 page 202 (cl 16(a) Business Terms and Conditions), 'ANZ-33' page 315 (cl 10 Consumer Lending Terms), 'ANZ-25' page 393 (cl 7.1 Memorandum).
ANZ issued notices of default to each of the borrowers under the Business Facility Agreement and the Home Loan Agreement as prescribed by each of those agreements (and in the case of the Home Loan Agreement, as required by law),[37] requiring the defaults to be remedied within the specified time.
[37] Pursuant to National Credit Code s 88 and Transfer of Land Act 1893 (WA) s 106.
In relation to the default under the Business Loan Agreement, ANZ gave notice to Tristar by letter dated 16 April 2018 terminating its obligations under the agreement and demanding immediate payment of all principal, interest, fees and charges outstanding, being $395,475.78 as at 13 April 2018.[38]
[38] Carrettin Affidavit [32], 'ANZ-19'.
Tristar did not repay the amount demanded and remedy the default within the time required, or at all.[39]
[39] Carrettin Affidavit [33].
On 17 May 2018, ANZ issued a notice of demand to Mr and Mrs Spiro as guarantors under the Guarantee demanding immediate repayment of the amount of $395,475.75 (Debt) and giving notice that if they did not comply with the demand, ANZ intended to take immediate action to recover the Debt.[40] Mr and Mrs Spiro did not comply with the demand by paying the Debt.[41]
[40] Carrettin Affidavit [34] 'ANZ-20'.
[41] Carrettin Affidavit [35].
On 1 November 2018, ANZ served on each of Mr and Mrs Spiro:[42]
(a)a notice of demand to them as guarantors under the Guarantee for immediate payment of $350,000 in respect of the amount due and owing by Tristar and which had not been paid (Guarantee Demand); and
(b)a default notice issued pursuant to the Home Loan Agreement and Royal Street Mortgage, s 106 of the Transfer of Land Act 1893 (WA) and s 88 of the National Credit Code, demanding payment of the arrears of $65,149.86 to be paid by no later than 10 December 2018 (Home Loan Default Notice).
[42] Carrettin Affidavit [48] - [51], 'ANZ-26'.
The Home Loan Default Notice stated that if the arrears were not paid by 10 December 2018, the total amount outstanding of $527,097.17 would become due and payable, and ANZ may commence proceedings claiming the total amount outstanding and/or possession of the Royal Street Property.
Mr and Mrs Spiro did not pay the amounts demanded or remedy the defaults by the time required, or at all, and failed to comply with the Guarantee Demand and the Home Loan Default Notice.[43]
[43] Carrettin Affidavit [38], [52].
The failure by Mr and Mrs Spiro to comply with the Guarantee Demand and the Home Loan Default Notice constituted a default under the terms of the Royal Street Mortgage.[44]
[44] Carrettin Affidavit [29], [45], 'ANZ-25' pages 393 - 394 (cl 7.1 Memorandum).
On 22 November 2018, ANZ issued and served a notice on Mr and Mrs Spiro pursuant to s 106 of the Transfer of Land Act 1893 (WA) in relation to the default under the Royal Street Mortgage, requiring them to remedy the default by 7 January 2019 by paying ANZ $350,000 (being the amount the subject of the Guarantee Demand) (Mortgage Default Notice).[45] Mr and Mrs Spiro did not comply with the Mortgage Default Notice.[46]
[45] Carrettin Affidavit [37], 'ANZ-21'.
[46] Carrettin Affidavit [38].
On 8 January 2019, ANZ issued and served on each of Mr and Mrs Spiro a demand under the Home Loan Agreement (Home Loan Demand).[47] The Home Loan Demand, in each case, required them to pay the amount owing under the Home Loan Agreement as at 7 January 2019 of $531,442,74, failing which ANZ gave notice it would take action to recover the amounts owing, including the enforcement of any security. Mr and Mrs Spiro did not comply with the Home Loan Demand.[48]
[47] Carrettin Affidavit [54], 'ANZ-27'.
[48] Carrettin Affidavit [54].
Mr May deposes in the May Affidavit that the amounts the subject of Guarantee Demand and Home Loan Demand have not been paid and he attaches a certificate of debt prepared by him, pursuant to cl 10.1 of the Memorandum, from ANZ's books and records of the amount owed under the Business Facility Agreement and the Home Loan Agreement.[49]
[49] May Affidavit [15], 'EM-6'.
The certificate records that:
(a)as at 9 June 2025, the amount of $739,364.23 is due and owing under the Home Loan Agreement; and
(b)as at 11 June 2025, the amount due and owing under the Guarantee Demand relating to the Business Facility Agreement is $350,000 plus interest.
The certificate does not state the amount of interest accrued in relation to the Business Facility Agreement. However, ANZ does not seek to recover a monetary amount. It seeks orders for possession of the Royal Street Property only.

Determination

Mr Carrettin, an officer of ANZ, and Mr May, a Senior Relationship Manager of ANZ, have sworn affidavits deposing to the facts verifying ANZ's claim, and attaching copies of the Business Facility Agreement, Home Loan Agreement, Royal Street Mortgage, the relevant terms and conditions and notices of default and demand. Each also depose to their belief, on behalf of ANZ, that there is no defence to its claim.
For the reasons given, leave was granted to ANZ 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 procedural requirements for an application for summary judgment, and has made out a prima facie case that it is entitled to possession of the Royal Street Property under the terms of the Business Facility Agreement, the Home Loan Agreement and the Royal Street Mortgage.
Although Mr and Mrs Spiro remain in possession of the Royal Street Property, they no longer have a beneficial interest in it. As such they do not have standing to defend the proceedings or to oppose the Application. As outlined earlier in these reasons, because of Mr and Mrs Spiro's bankruptcy, the Royal Street Property has vested in Mr Carrello, as trustee of Mr Spiro's and Mrs Spiro's bankrupt estate. Mr Carrello does not seek to defend the proceedings and does not object to the orders sought in the Application for possession of the Royal Street Property.
Ordinarily, the plaintiff having established a prima facie entitlement to summary judgment, the evidentiary burden would then pass to the defendant to show there is an arguable defence or some other reason there ought to be a trial of the action. In this case, for the reasons outlined, the defendants do not have standing to adduce evidence in opposition to the Application.
Even if that were not the case, the evidence filed by Mr and Mrs Spiro does not condescend to particulars or provide sufficient details of the matters alleged. The material sought to be relied upon asserts matters said to give rise to a defence or a counterclaim. However, it does not disclose facts that may constitute a genuine or arguable defence to ANZ's claim, that there is an issue to be tried or some other reason why the action should proceed to trial.
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 the time of filing, that summary judgment should be entered in favour of ANZ, and an order made that Mr and Mrs Spiro deliver up possession of the Royal Street Property to ANZ within 28 days.
I made the following orders:
1.The plaintiff has leave to bring the Application pursuant to Order 14, rule 1 of the Rules of the Supreme Court 1971 (WA) (RSC), the time for which is extended to the date of filing, 3 August 2023.
2. Pursuant to Order 14, rule 3 RSC, summary judgment is entered for the plaintiff against the third and fourth defendants.
3. Within 28 days of the date of these orders, the third and fourth defendants are to give and deliver up to the plaintiff vacant possession of all of that land and property known as Unit 29, 20 Royal Street. East Perth WA 6004, more particularly described as Lot 29 on Strata Plan 40793 and being the whole of the land contained in Certificate of Title Volume 2510, Folio 629.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MM
Acting Associate to Master Russell
18 JUNE 2025

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Citations

Australia and New Zealand Banking Group Limited v Tristar Group Pty Ltd [2025] WASC 237

Cases Citing This Decision

0

Cases Cited

23

Statutory Material Cited

2

Australia and New Zealand Banking Group Limited v State of Western Australia [2023] WASC 409

Owners of Majestic Rise and Majestic Crest Apartments Strata Plan 40793 v Spiro [2023] FCA 722

Cirillo v Citicorp Australia Ltd [2004] SASC 293