Bank of Western Australia Ltd v Kwa

[2003] WASC 110

BANK OF WESTERN AUSTRALIA LTD -v- KWA [2003] WASC 110

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASC 110
Case No:	CIV:2132/2002	Heard:	29 APRIL 2003
Coram:	MASTER NEWNES	Delivered:	29/04/03
No of pages:	6	Judgment Part:	1 of 1
Result:	Application allowed
Category:	B
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Parties:	BANK OF WESTERN AUSTRALIA LTD FRANCIS TAK LAU KWA
Catchwords:	Practice and procedure Application by plaintiff for summary judgment Turns on own facts
Legislation:	Nil
Case References:	Nil AJ & S Constructions Pty Ltd v Aussie Trading House [1999] TASSC 77 Alexander & Ors v Cambridge Credit Corp Ltd & Ors [1985] NSWLR 685 Australian & New Zealand Banking Group Ltd v Barry [1992] 2 Qd R 12 Cloverdell Lumber Co Pty Ltd v Abbott (1924) 34 CLR 122 Croney v Nand [1999] 2 Qd R 342 Federal Commission of Taxation v Myer Emporium Ltd (1986) 160 CLR 220 Griffiths v Australian Postal Commission (1987) 87 FLR 139 Jones v Stone [1894] AC 122 Kanda v Government of Malaya [1962] AC 322 Roberts v Plant [1895] 1 QB 597 Stephens v Huett (1983) Tas R (NC) N 10

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : BANK OF WESTERN AUSTRALIA LTD -v- KWA [2003] WASC 110 CORAM : MASTER NEWNES HEARD : 29 APRIL 2003 DELIVERED : 29 APRIL 2003 FILE NO/S : CIV 2132 of 2002 BETWEEN : BANK OF WESTERN AUSTRALIA LTD

Plaintiff

AND

FRANCIS TAK LAU KWA
Defendant

Catchwords:

Practice and procedure - Application by plaintiff for summary judgment - Turns on own facts

Legislation:

Nil

Result:

Application allowed

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : Mr D P Nolan
Defendant : In person

Solicitors:

Plaintiff : BankWest Legal
Defendant : In person

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

Nil

Case(s) also cited:

AJ & S Constructions Pty Ltd v Aussie Trading House [1999] TASSC 77
Alexander & Ors v Cambridge Credit Corp Ltd & Ors [1985] NSWLR 685
Australian & New Zealand Banking Group Ltd v Barry [1992] 2 Qd R 12
Cloverdell Lumber Co Pty Ltd v Abbott (1924) 34 CLR 122
Croney v Nand [1999] 2 Qd R 342
Federal Commission of Taxation v Myer Emporium Ltd (1986) 160 CLR 220
Griffiths v Australian Postal Commission (1987) 87 FLR 139
Jones v Stone [1894] AC 122
Kanda v Government of Malaya [1962] AC 322
Roberts v Plant [1895] 1 QB 597
Stephens v Huett (1983) Tas R (NC) N 10

(Page 3)

1 MASTER NEWNES: This is the plaintiff's application for summary judgment against the defendant. It was made by a chamber summons of 11 December 2002. The writ of summons in the matter was issued on 13 August 2002. In that writ the plaintiff claims against the defendant possession of certain land known as 20-20A Wheatcroft Street, Scarborough, pursuant to a mortgage dated 25 August 2000.

2 A statement of claim was served on the defendant shortly after the writ, together with a chamber summons for summary judgment. Subsequently, on 20 February 2003, the plaintiff applied to amend the statement of claim and leave was granted for that to be done. The summary judgment application is now pursued today.

3 In support of the application there have been filed affidavits on behalf of the plaintiff, by Gavin Russell Black, sworn on 11 December 2002 verifying the original statement of claim, a further affidavit of 14 February 2003 verifying the amended statement of claim and an affidavit of Wayne Leslie Robbins dated 19 February 2003 which was filed in response to the defendant's affidavits. Mr Kwa, the defendant, has filed affidavits dated 16 December 2002, 31 January 2003, 4 March 2003, 3 April 2003 and 27 April 2003.

4 However, the essential facts are not in dispute. The defendant is and was the registered proprietor of the land which is made up of five certificates of title. He is registered in his own right in respect of two of those lots and as trustee of the FTL Kwa Trust in respect of the other three lots.

5 By letter dated 17 August 2000 the plaintiff offered to provide certain finance facilities to the defendant. It was an express term of the proposed facility that the defendant secure his indebtedness under the facilities by a registered mortgage "as trustee for the FTL Kwa Trust over the property situate at 20-20A Wheatcroft Street, Scarborough."

6 The letter enclosed the plaintiff's general terms and conditions for business lending which were to be incorporated into the agreement. The defendant signed the letter by way of acceptance of its terms and returned it to the plaintiff. The date upon which he did that is not clear but it must have been before 25 August 2000 as the letter was stamped as a dutiable instrument on that date.

7 On 22 August 2000 the defendant also signed a document entitled "Trustee Declaration" by which he declared that the land was the property of the FTL Kwa Trust and that he signed the mortgage as trustee of the

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trust and he did so in conformity with the trust deed and for the benefit of the beneficiaries.

8 On 25 August 2000 the defendant signed the mortgage. The mortgage describes the defendant as the mortgagor. The mortgage was duly registered against the land.

9 It is not in issue that the plaintiff advanced funds in the sum of $1,352,315.46 to the defendant, that the defendant has defaulted under the agreement and the mortgage, and that the money remains outstanding, together with accrued interest and costs.

10 The defendant has raised several defences to the plaintiff's claim for possession.

11 The first is that he did not execute the mortgage as trustee of the trust but in his personal capacity. He says that three of the five lots are the property of the trust and that the plaintiff is not entitled to possession of those. No point is taken in respect of the other two lots.

12 Mr Kwa also says that the trustee declaration he signed is formulated on the basis that the mortgage documents have already been signed and he draws attention to subcl (c) on page 1 of the document (which is at page 106 of the affidavit of Gavin Russell Black). He says that the trust declaration was signed several days before the mortgage.

13 In my view, it is clear from the trust deed, a copy of which is annexed to Mr Kwa's affidavit of 31 January 2003, that he was empowered to provide the trust property by way of security. It is also clear from the letter agreement, that is, the letter from the plaintiff of 17 August 2000 and signed by the defendant by way of acceptance of its terms, and by the Trustee Declaration, that so far as the defendant held the land on trust, he entered into the mortgage in his capacity as trustee.

14 I consider I am entitled to have regard to those documents on the question of the capacity in which Mr Kwa entered into the mortgage, to the extent it is necessary on the current application to do so. I do not think anything turns on the point raised by Mr Kwa in relation to the order in which the documents were signed. When one has regard to all of the documents, including the terms of the trust deed declaration and the mortgage, it is clear in my view that he entered into the mortgage as trustee.

(Page 5)

15 I might add that if he was not entering into the mortgage as trustee then it is difficult to understand what he thought he was providing by way of security in respect of the trust land.

16 It is clear, in my view, that Mr Kwa's contention that the mortgage does not extend to the trust land, because the mortgage was not executed by him in his capacity as trustee, provides no arguable defence to the plaintiff's claim, quite apart from any question of indefeasibility.

17 Secondly, Mr Kwa raises a defence by way of set-off. That is based on allegations that the plaintiff unlawfully disclosed the defendant's financial affairs to a person with whom the defendant was negotiating to form a joint venture. It is said that as a result of learning of the defendant's financial affairs from the plaintiff, that person withdrew from the negotiations. The defendant says that as a result he suffered damage.

18 I might note in passing that the defendant does not say that the plaintiff misrepresented the defendant's financial affairs, merely that it disclosed them.

19 The alleged disclosure is denied by the plaintiff. I should add that these events are said to have occurred after the defendant was in default under the mortgage and demands had been made by the plaintiff.

20 In the affidavits of the defendant the alleged negotiations and set-off are put in very general, even vague, terms. The detail of the proposed joint venture is not disclosed and there is nothing to suggest that the negotiations, such as they were, were likely to culminate in any agreement. Even making all due allowances for the fact that a litigant in person may not articulate a cause of action with the precision or clarity that a legal practitioner may do, the material advanced by the defendant, in my view, does not disclose any arguable defence of set-off or otherwise.

21 Mr Kwa has also raised more recently, relying upon an affidavit of 27 April 2003, grounds of unconscionability. In his submissions before me he put that on two bases: (1) that the interest rate charged by the bank was unconscionable, and (2) that his inability to service the mortgage has come about through no fault of his own but was due to a motor vehicle accident for which he was not responsible.

22 As to the first, the plaintiff says that the interest rates are those provided for in the mortgage and, of itself, there can be nothing

(Page 6)

unconscionable in charging interest in accordance with the agreement, and that plainly must be right.

23 As to the other ground, that the defendant is unable to service the mortgage because of events which are outside his control, whatever sympathy one may have for Mr Kwa's personal circumstances, the fact is that he entered into an agreement which required him to make certain payments and, in default of doing so, the plaintiff was entitled to exercise its rights under the agreement. It is not to the point that Mr Kwa's inability to meet his obligations has come about by reasons beyond his control. They are, of course, also beyond the control of the plaintiff. The plaintiff is, in the circumstances, entitled to exercise its rights under the agreement.

24 Mr Kwa has also pressed upon me that the property is of such value that the plaintiff has adequate security and would not be prejudiced if it is not given possession and not permitted to act upon the security documents. Counsel for the plaintiff pointed out that that will often be the case where there is a default and it cannot affect the entitlement of the plaintiff to exercise the rights which are accorded to it by the agreements and which have come into effect. Once again, plainly that is right.

25 It is not to the point that the property is sufficient security for the moneys owing. There has been default; that is not disputed. The plaintiff has made demand and otherwise taken the steps necessary to exercise its rights under the agreement, and in my view, it is entitled to do so. Nothing that has been put before me has disclosed, in my view, any arguable defence and in those circumstances I consider the plaintiff is entitled to the relief it seeks.