Australia and New Zealand Banking Group Ltd v Darcy - [2015] WASC 424

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD -v- DARCY [2015] WASC 424

CORAM: ACTING MASTER GETHING

HEARD: 13 OCTOBER 2015

DELIVERED : 13 OCTOBER 2015

PUBLISHED : 6 NOVEMBER 2015

FILE NO/S: CIV 1050 of 2015

BETWEEN: AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD
Plaintiff
AND
JOSEPH LAURENCE DARCY
Defendant

Catchwords:

Practice and procedure - Summary judgment

Legislation:

Rules of the Supreme Court 1971 (WA), O 14

Result:

Summary judgment awarded

Category: B

Representation:

Counsel:

Plaintiff: Mr B C Smith
Defendant: In person

Solicitors:

Plaintiff: Gadens Lawyers
Defendant: In person

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

Field Camp Services Pty Ltd v Site Accommodation Pty Ltd [No 2] [2012] WASCA 27
HSBC Bank Australia Ltd v Mavaddat [2015] WASC 153
ACTING MASTER GETHING:
(This judgment was delivered extemporaneously on 13 October 2015, and has been edited from the transcript.)

The application before me today for determination is an application by the Australian and New Zealand Banking Group Limited (ANZ) for summary judgment against Joseph Laurence Darcy in relation to a piece of land. The land is situated at lot 51 Eliza Shaw Drive, Buller. I am told that it is a vacant block of land.
The application for summary judgment was made on 30 June 2015. The appearance was filed back on 31 January 2015. This means that ANZ must apply for leave to bring the application, which it has done.
There are, essentially, four issues for determination today:
1.Should ANZ be granted leave to bring a summary judgment application?
2.Has ANZ established its claim?
3.Does Mr Darcy have an arguable defence?
4.Is there some other reason not to award summary judgment?
In dealing with the law in relation to summary judgment applications, I adopt the summary which I recently set out in HSBC Bank Australia Ltd v Mavaddat.[1]
[1] HSBC Bank Australia Ltd v Mavaddat [2015] WASC 153 (Acting Master Gething).
The first issue is whether ANZ should be given leave to bring its summary judgment application. In relation to the issue of delay, ANZ filed an affidavit of Kristy Louise White, of 30 June 2015. Ms White is a paralegal employed by ANZ's solicitors. The essence of Ms White's affidavit is that the length of time between the appearance being entered and the summary judgment application being commenced was due to attempts to negotiate with Mr Darcy in relation to a payment proposal.
The policy rationale for the time limit is to ensure that summary judgment applications are brought at an early stage of proceedings before unnecessary expense has been incurred. In Mavaddat, I summarised the principles as follows:[2]
The discretion to extend time is given for the sole purpose of enabling a court to do justice between the parties, and may be exercised in favour of an applicant where strict compliance with the rules will work an injustice on 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 time.
[2] Mavaddat [9] (references omitted).
It seems to me that a delay in the order of five months, whilst there were some attempts to renegotiate the loan, is not in any way excessive. The application was still brought at an early stage of the proceedings and before too much other expense has been incurred in the litigation process. Mr Darcy did not place before the court any evidence of any specific prejudice. In my view, a grant of leave is appropriate.
The second issue is whether or not ANZ has established its claim. The primary evidence in support of its claim is in an affidavit of Anthony James Weaver, sworn 19 March 2015. Mr Weaver is an officer of ANZ. Mr Weaver's evidence is as follows. On or about 11 August 2008, ANZ and Mr Darcy, in his own capacity and in his capacity for the Joe Darcy Family Trust, entered into a written loan agreement. Pursuant to that loan agreement, Mr Darcy borrowed the sum of $258,000. The repayment was secured through a first registered mortgage over the property. The funds were advanced to Mr Darcy on or about 27 August 2008. Mr Weaver then goes on to say that, as at 31 October 2014, Mr Darcy had failed to pay the sum of $4,698.54 that was due and, by that failure, became in default under the loan agreement and the mortgage. A notice of default dated 5 November 2014 was issued, and Mr Darcy failed to comply with the default within the time specified. As at the date of swearing of the affidavit, which was 19 March 2015, the total amount in arrears was just over $15,000. The total amount in arrears is now some $27,556.56.
I am satisfied that Mr Weaver has verified the facts on which ANZ's claim is based, as required by Rules of the Supreme Court 1971 (WA) (RSC) O 14 r 2(1). Mr Weaver also deposes that he believes that Mr Darcy does not have a defence for the action, also as required by O 14 r 2(1).
As a general principle, an applicant for summary judgment who complies with the requirements of RSC O 14 r 2 establishes a prima facie right to summary judgment.[3] I am therefore satisfied that ANZ has a prima facie right for summary judgment.
[3] Mavaddat [24].
The third issue is whether or not Mr Darcy has an arguable defence. As ANZ has satisfied all the requirements of RSC O 14 so as to give it a prima facie right to judgment, the burden shifts to Mr Darcy to satisfy the court why judgment should not be given against him.[4] He must satisfy the court that 'with respect to the claim there is an issue or question in dispute which ought to be tried or there ought to be for some other reason a trial of the claim'.[5] Mr Darcy does not have to show a defence on the balance of probabilities, but must at least show cause why there is an arguable defence.[6]
[4] Mavaddat [26].
[5] RSC O 14 r 3(1).
[6] Field Camp Services Pty Ltd v Site Accommodation Pty Ltd [No 2] [2012] WASCA 27 [4] (reasons of the court).
Mr Darcy has filed one affidavit in relation to the application, being an affidavit dated 28 August 2015. In it, he deposes, among other things, that in about June 2014, he became very ill and was unable to work for a number of months. This affected his repayment ability and the loan fell into arrears. He then deposes that he underwent surgery, to which he has only just recovered, and has resumed working.
The essence of the position advanced by Mr Darcy to the court, both in his affidavit and in submissions today, is that in the period since the notice of default has been issued, he has been endeavouring to engage with ANZ and to negotiate a repayment position. I sense from Mr Darcy's submissions some element of frustration as to his inability to engage with ANZ.
In relation to the most current round of negotiations, I have before me an affidavit of Alofagia Toelei'u sworn 23 September 2015. Ms Toelei'u is employed by the ANZ as a case manager in the 'Customer Connect' team. She states that in March 2015, Mr Darcy's account was referred to her by Mr Weaver for a hardship assessment. She states that she made contact with Mr Darcy by telephone and also sent a document entitled 'Statement of Position' to him by post to what I understand to be his residential address in Ocean Reef.
She then refers to a telephone conversation with Mr Darcy on 29 April 2015. The essence of that conversation was that there was a possibility that if Mr Darcy made minimum repayments on the loan account for a period of six months, then there would be options that ANZ would consider to address the outstanding arrears, including capitalisation.
A key, at least on Ms Toelei'u's evidence, is that Mr Darcy was required to return the Statement of Position in order for ANZ to consider entering into the arrangement. On Ms Toelei'u's evidence, the Statement of Position has not been received and, by letter of 26 May 2015, Mr Darcy was advised that his application for hardship assistance had been declined.
In submissions before me, Mr Darcy stated that he had a look at the Statement of Position and viewed that it was not appropriate to someone in his position as he could make monthly payments. So, therefore, he declined to provide it. I note that in the letter of 26 May 2015 to Mr Darcy, sent by Ms Toelei'u, she refers to the fact that ANZ is a member of the Financial Ombudsman Scheme and invited Mr Darcy to refer his complaint to that scheme.
To the extent that there is an arguable defence, the defence appears to be based on a breach of customer credit code requirements for ANZ to, in essence, act reasonably and perhaps even compassionately towards Mr Darcy in relation to the renegotiation and the enforcement of the proceedings. On the information before me, the precise nature of that defence or that provision has not been drawn to my attention.
However, on the evidence before me, I am satisfied that ANZ has made reasonable efforts to engage with Mr Darcy in relation to a potential repayment plan. To the extent that ANZ may have declined to accept his offers of repayment, that is something that ANZ is entitled to do, exercising its rights under the mortgage documents. For those reasons, I am not satisfied that Mr Darcy has an arguable defence.
The final issue is whether or not there is some other reason not to award summary judgment to ANZ. On an application pursuant to the RSC O 14, the court may decline to award summary judgment if the defendant has satisfied the court that 'there ought for some other reason' to be a trial of the claim.[7]
[7] RSC O14 r 3(1).
On the information before me, to the extent that there are contentious issues, the contentious issues relate to enforcement. They do not relate to the merits of the claim by ANZ. I do not consider that there is some other reason why this matter should be allowed to proceed through to the trial process.
For those reasons, I am satisfied that an order for summary judgment ought to be made. In coming to that conclusion, I am mindful of the fact that the power to order summary judgment is one that should be exercised with great care and should never be exercised unless it is clear there is no real question to be tried. 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 to be granted.[8]
[8] Mavaddat [108].
The overall burden of persuasion to establish that summary judgment is warranted is on ANZ as the applicant for summary judgment.[9] I am satisfied that it has discharged that onus and that it is appropriate to make an order for summary judgment.
[9] Mavaddat [108].