Bendigo and Adelaide Bank Ltd v Smith - [2019] WASC 296

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   BENDIGO AND ADELAIDE BANK LTD -v- SMITH [2019] WASC 296
CORAM:   ACTING JUSTICE STRK
HEARD:   21 MARCH 2019
DELIVERED          :   16 AUGUST 2019
FILE NO/S:   CIV 2153 of 2018
BETWEEN:   BENDIGO AND ADELAIDE BANK LTD
Plaintiff
AND
CHRISTOPHER COLIN SMITH
First Defendant
CLARISSE SMITH
Second Defendant

Catchwords:

Practice and Procedure - Summary judgment for possession in favour of registered mortgagee against holder of unregistered interest - Default under mortgage - Whether there is an arguable defence based on estoppel - Turns on own facts

Legislation:

Bankruptcy Act 1966 (Cth)
Civil Judgments Enforcement Act 2004 (WA)
Residential Tenancies Act 1987 (WA)
Rules of the Supreme Court 1971 (WA)
Transfer of Land Act 1893 (WA)

Result:

Application dismissed
The defendant is given conditional leave to defend

Category: B

Representation:

Counsel:

Plaintiff	:	JC Yeldon
First Defendant	:	No appearance
Second Defendant	:	DW Thompson

Solicitors:

Plaintiff	:	CWS Lawyers
First Defendant	:	In Person
Second Defendant	:	In Person

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

Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Bankwest (A Division of Commonwealth Bank of Australia) v Mann [2015] WASC 187
Bastitstatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Baumgartner v Baumgartner (1987) 164 CLR 137
Deputy Commissioner of Taxation v Lafferty [2017] WASC 257
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
Fazio v Fazio [2010] WASC 263
GEL Custodians Pty Ltd v Dewar [2014] WASC 177
Gillett v Holt [2001] Ch 210
HSBC Bank Australia Ltd v Mavaddat [2015] WASC 153
Hughes v Metropolitan Railway Company (1877) 2 App Cas 439
Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160
Legione v Hateley [1983] HCA 11; (1983) 152 CLR 406
Mason v Wagonga Local Aboriginal Land Council [2002] NSWSC 351
Mavaddat v HSBC Bank Australia Ltd [No 2] [2016] WASCA 94
Morgan v Pallister [2004] WASC 188
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109
Official Trustee in Bankruptcy v Tooheys Ltd (1993) 29 NSWLR 641
Re Ferndinando (1993) 42 FCR 243
Saleh v Romanous [2010] NSWCA 274; (2010) NSWLR 453
Silvester v Sands [2004] WASC 266
Smart v Prisoner Review Board (WA) [2012] WASC 48
Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
The Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239; (2008) 39 WAR 1
Tipperary Developments Pty Ltd v The State of Western Australia [2009] WASCA 126; (2009) 38 WAR 488
Wallingford v Mutual Society (1880) 5 App Cas 685
Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Westpac Banking Corporation v The Bell Group Ltd (in liq) [No 3] [2012] WASCA 157; (2012) 44 WAR 1
Wright v…

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.

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Details

Case: [2019] WASC 296
Decision Date: 16 AUGUST 2019

CaseChat Overview and Summary

Bendigo and Adelaide Bank Ltd brought an application for summary judgment against Ms Smith in the Federal Circuit Court of Australia, seeking possession of property following a default under a mortgage. Ms Smith, who held an unregistered interest in the property, opposed the application, arguing that a defence based on promissory estoppel was arguable. The court was tasked with determining whether Ms Smith's defence was so untenable as to be incapable of success, and if not, whether it was appropriate to resolve the matter on a summary basis.

The central legal issue was whether Ms Smith's promissory estoppel defence was sufficiently arguable to warrant a trial rather than summary judgment. The court considered the principles of promissory estoppel, including the requirement for unconscionability in exercising legal rights. The court also examined the submissions made by both parties and the documents provided to determine if the defence could potentially succeed. Given the unsettled nature of the scope of promissory estoppel, the court found that Ms Smith's defence was not so untenable that it could not possibly succeed, and therefore, a trial was warranted.

In light of the arguable defence presented, the court determined that it was not appropriate to resolve the matter on a summary basis. The court acknowledged the possibility that it might be unconscionable for the Bank to exercise its legal rights against Ms Smith. Consequently, the application for summary judgment was dismissed, and Ms Smith was granted leave to defend the action on the condition that she made a weekly payment of $1,000. The court further noted that it would hear the parties regarding the appropriate form of the order, including the destination of the weekly payments.

The court's final orders included dismissing the Bank's application for summary judgment and granting Ms Smith leave to defend on the condition of making a weekly payment. The court reserved further determinations, including the specifics of the weekly payments, for later discussion with the parties.

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 precise scope of promissory estoppel remains unsettled.[57] Accepting all the facts alleged by Ms Smith to be true, I am not satisfied that her defence and claim of promissory estoppel in relation to the Property is so untenable that it cannot possibly succeed. The foundation of an equitable estoppel is a finding by the court that it would be unconscionable in the circumstances of the case for one party to exercise its legal rights against another.[58] Arguably, this is such a case. It is not appropriate that the issues referred to above be resolved on a summary basis.[57] Westpac Banking Corporation v The Bell Group Ltd (in liq) [No 3] [2012] WASCA 157; (2012) 44 WAR 1 [1738] – [1768].[58] Waltons Stores (Interstate) Ltd v Maher, 419 cited in Bankwest (A Division of the Commonwealth Bank of Australia) v Mann [74]. In all of the circumstances and having given careful consideration to the documents before me and to the submissions made, I am satisfied that there is a question to be tried. Having reached that conclusion, it is not appropriate that I enter judgment in favour of the Bank. Given that there will be a trial of the issues, it is also not appropriate that I express concluded views as to any of the defences raised. The summary judgment application should be dismissed and Ms Smith given leave to defend. The court may give a defendant against whom an application for summary judgment is made leave to defend the action, either unconditionally or on such terms as to giving security or time or mode of trial or otherwise as it thinks fit.[59] Ms Smith will have leave to defend the action on the condition that she makes payment of $1,000 per week. I will hear the parties as to the appropriate form of order, including whether the payment is made to the Bank or into court.[59] RSC O 14 r 4(3).