Choules v Siglin - [2001] WASC 234

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CHOULES & ORS -v- SIGLIN & ANOR [2001] WASC 234

CORAM: MASTER BREDMEYER

HEARD: 24 AUGUST 2001

DELIVERED : 31 AUGUST 2001

FILE NO/S: CIV 1566 of 2001

BETWEEN: ADRIAN CLAUDE CHOULES
LESLEY BARBARA CHOULES
ARTHUR THORNDYKE DAVIES
INEZ THEONE DAVIES
OLIVER WILLIAM HARTLEY
DAISY HARTLEY
PETER NELSON
HELEN NELSON
JOHN FRANCIS PARKER
DOROTHY JANE PARKER
WILLIAM ROBERT ROY SMITH
Plaintiffs
AND
JUNE ILMA SIGLIN
First Defendant
DAVID SIGLIN
Second Defendant

Catchwords:

Summary judgment - Mortgage action - Unconscionable conduct - Mortgage from elderly mother - Money loaned going to her businessman son

Legislation:

Nil

Result:

Application allowed

Category: B

Representation:

Counsel:

Plaintiffs:     Mr J C Giles
First Defendant             :     Mr M J McPhee
Second Defendant         :     In person

Solicitors:

Plaintiffs:     Solomon Brothers
First Defendant             :     Michell Sillar McPhee
Second Defendant         :     In person

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

Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
Garcia v National Australia Bank Ltd (1998) 194 CLR 395
National Australia Bank Ltd v Nobile & Anor (1988) 100 ALR 227
Yerkey v Jones (1939) 69 CLR 649

Case(s) also cited:

Bank of Victoria Ltd v Mueller [1925] VLR
Bridgewater v Leahy (1998) 194 CLR 457
Conlan (as Liquidator of the Oakleigh Acquisitions Pty Ltd) v The Registrar of Titles & Ors [2001] WASC 201
Erlanger v New Sombrero Phosphate Co (1878) 3 App Cas 1218
Greer v Kettle [1938] AC 156
Maguire v Makaronis (1997) 188 CLR 449
Mayfair Trading Co Pty Ltd v Dreyer (1958) 101 CLR 428
Micarone v Perpetual Trustees (1999) 75 SASR 1
Monarch Petroleum NL v Citco Australia Petroleum [1986] WAR 310
Pegrum v Fatharly (1996) 14 WAR 92
South Sydney District Rugby League Football Club v Newsland (2000) 177 ALR 611
Vadasz v Pioneer Concrete (SA) Pty Ltd (1985) 184 CLR 102

MASTER BREDMEYER: This is an application by the plaintiffs against the defendants for summary judgment. It is a mortgage action and the plaintiffs seek an order for possession of the mortgaged property. Mrs June Siglin, the first defendant, was aged about 75 years when the mortgage was signed. It is of her unit at Unit 21, 23 Swan Street, South Perth. The second defendant, Mr David Siglin, is her son who was aged about 47 at the time the mortgage was signed. He lives with his mother in the same unit. The sum borrowed was $400,000. The mortgage, which included a guarantee, was signed on 15 May 1998. The mortgage was for one year. It was renewed for a further year. The borrower defaulted under the mortgage and a notice of demand calling up the mortgage was served on the defendants.
The plaintiffs have filed two affidavits in support: one from Mr Geoffrey Hayles sworn 1 June 2001 and another from Mr John Parker sworn 1 August 2001. Mr Hayles was the solicitor who prepared the mortgage and got the defendants to sign it. Mr Parker is one of…

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: [2001] WASC 234
Decision Date

CaseChat Overview and Summary

The Supreme Court of Western Australia, presided over by Master Bredmeyer, considered an application for summary judgment by the plaintiffs against the defendants in a mortgage action. The plaintiffs sought an order for possession of the mortgaged property, a unit in South Perth, which was mortgaged by Mrs. June Siglin, an elderly woman, and guaranteed by her son, Mr. David Siglin. The loan, amounting to $400,000, was for one year, later extended for another year, but the borrower defaulted. The plaintiffs, a group of investors, arranged the loan through a mortgage broker. Mrs. Siglin, who relied on her pension as her sole income, signed the mortgage without understanding its terms, and did not seek independent legal advice. The court examined the legal principles of unconscionable conduct as laid out in previous cases, such as Commercial Bank of Australia Ltd v Amadio and Garcia v National Australia Bank Ltd, and determined that Mrs. Siglin did not establish an arguable defence of unconscionable conduct. The court found that while Mrs. Siglin was in a position of disadvantage, the lenders did not take unconscientious advantage of her situation. The court also found that Mr. David Siglin, who signed as a guarantor, was not under any disability and no explanation was owed to him. Consequently, the court granted the plaintiffs' application for summary judgment against both defendants.

Orders