Commonwealth Bank of Australia (ACN 123 123 124) v Deighton - [2024] WASC 410

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124) -v- DEIGHTON [2024] WASC 410
CORAM:   MASTER RUSSELL
HEARD:   29 OCTOBER 2024
DELIVERED          :   29 OCTOBER 2024
PUBLISHED           :   5 NOVEMBER 2024
FILE NO/S:   CIV 1049 of 2024
BETWEEN:   COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124)
Plaintiff
AND
LUKE ANTHONY DEIGHTON
Defendant

Catchwords:

Practice and procedure - Summary judgment - Application for leave to bring application out of time - Mortgage action - Application for possession of property - Turns on own facts

Legislation:

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	:	Mr B C Smith
Defendant	:	In Person

Solicitors:

Plaintiff	:	Dentons Australia
Defendant	:	In Person

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

Atkinson v Federal Commissioner of Taxation [2014] FCA 1217
Australia and New Zealand Banking Group Limited v Evans [2016] NSWSC 1742
Branch v Town of Victoria Park [2023] WASC 231
Bray v Ford [1986] AC 44
Cologna Investments Pty Ltd as trustee for the P. and D. Panizza Family Trust v Caranna [2023] WASC 368
Commonwealth Bank of Australia v Smith (1991) 44 FCR 390
Connell v Australia and New Zealand Banking Group Limited [2023] WASCA 48
Deputy Commissioner of Taxation v Casley [2017] WASC 161
Deputy Commissioner of Taxation v Lafferty [2017] WASC 257
Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
ING Bank (Australia) Limited v Wilson [2013] SASC 6
Kelly v Fiander [2023] WASC 187
Kelly v Fiander [2024] WASC 275
Maksacheff v Commonwealth Bank of Australia (No 2) [2016] NSWSC 1109
Mineralogy Pty Ltd v Sino Iron (No 11) [2016] WASC 235
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109
MTI v SUL [No 2] [2010] WASCA 58
Smart v Prisoner Review Board (WA) [2012] WASC 48
St George Bank v Hammer (No 2) [2015] NSWSC 953
Stefan v McLachlan [2023] VSC 501; (2023) 105 MVR 214
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
Wallingford v Mutual Society (1880) 5 App Cas 685
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Westpac Banking Corporation v Anderson [2017] WASC 106
Westpac Banking Corporation v Davey [2016] WASC 316
Yap v Matic [No 4] [2022] WASC 422
Yap v Matic [No 7] [2023] WASC 55

MASTER RUSSELL:

Introduction

The defendant, Luke Anthony Deighton, is the registered proprietor of the land and property located at and known as 46 Hayclif Avenue, North Boyanup in the State of Western Australia described as Lot 50 on Plan 16870, being the whole of the land comprised in Certificate of Title volume 1829 folio 683 (Property).
The plaintiff, the Commonwealth Bank of Australia, commenced this proceeding against the defendant on 18 January 2024 by writ of summons indorsed with a statement of claim, seeking orders for possession of the Property under the terms of a written loan agreement and mortgage.
By chamber summons filed on 20 May 2024, the plaintiff applied for summary judgment against the defendant pursuant to O 14 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC) (Application). The defendant opposed the Application.
The plaintiff required, and sought, leave to bring the Application, as it was not made within 21 days after the defendant entered his appearance as required under O 14 r 1 RSC. The defendant filed a memorandum of appearance on 14 February 2024.
I heard the Application on 29 October 2024. Having considered the affidavits and submissions filed by the parties, and the further submissions made at the hearing of the Application, I was satisfied that:
(a)it was appropriate that the plaintiff have leave to bring the Application and that the time to do so be extended to 20 May 2024, the date it was filed;
(b)the plaintiff had complied with the procedural requirements for an application for summary judgment and made out a prima facie case;
(c)the defendant had not discharged his evidentiary burden of establishing that there is an arguable defence to the plaintiff's claim, an issue or question to be tried, or some other reason why there ought to be a trial of the action; and
(d)this is a clear case in which it is appropriate to enter summary judgment.
At the hearing on 29 October 2024, I gave relatively brief oral reasons for my decision and made orders extending the time for bringing the Application, entering judgment for the plaintiff and requiring the defendant to deliver up possession of the Property to the plaintiff by 26 November 2024.
I said I would publish more detailed reasons for my decision. These are those reasons.

The plaintiff's claim and evidence relied upon

In essence, the plaintiff claims that the defendant is in default of the terms of a loan agreement and mortgage entered into between the plaintiff and the defendant, the defendant has failed to remedy the default, the plaintiff is entitled to judgment for the amount owing and to possession of the Property.
In support of the Application, the plaintiff relied upon:
(a)an affidavit affirmed by an officer of the plaintiff, Stephen John Clifford, on 23 April 2024 (Clifford Affidavit);
(b)an affidavit of James Bruce McTernan, a solicitor employed by the plaintiff's former solicitors, affirmed on 17 May 2024 (McTernan Affidavit); and
(c)affidavits sworn by Ashleigh Paige Fernandez, a solicitor employed by the plaintiff's solicitors, on 20 May 2024 (First Fernandez Affidavit), 24 June 2024 (Second Fernandez Affidavit) and 29 October 2024 (Third Fernandez Affidavit).
The plaintiff also relied on an outline of submissions filed in support of the Application on 8 July 2024.

The defendant's position and evidence relied upon

I refer to the matters raised by the defendant in opposition to the Application later in these reasons.
The defendant relied upon:
(a)a document titled 'Response to Chamber Summons for Summary Judgment pursuant to Order 14 of the Rules of the Supreme Court & Affidavit of Luke Anthony Deighton' affirmed and filed on 5 June 2024 (First Deighton Affidavit);
(b)an affidavit of Luke Anthony Deighton affirmed and filed on 8 July 2024 (Second Deighton Affidavit); and
(c)an outline of submissions filed on 8 July 2024.

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.[1]
[1] Cologna Investments Pty Ltd as trustee for the P. and D. Panizza Family Trust v Caranna [2023] WASC 368 (Archer J) (Cologna Investments) [27].
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.[2]
[2] 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.[3]
[3] Cologna Investments [26], [27.2]. See also Mineralogy Pty Ltd v Sino Iron (No 11) [2016] WASC 235 [4]; Deputy Commissioner of Taxation v Lafferty[2017] WASC 257 (Lafferty) [40] - [41]; Westpac Banking Corporation v Anderson [2017] WASC 106 [38] (Pritchard J).
In Gallo v Dawson,[4] 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.
[4] 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.[5]
[5] O 14 r 2(1) RSC.
The legal principles relating to applications for summary judgment are well established. The power to grant summary judgment should be exercised with great care, and summary judgment should only be granted in the clearest of cases where there is no real issue to be tried. The key principles were summarised by the Court of Appeal in Sutton Investments Pty Ltd v Realistic Investments Pty Ltd,[6] as follows:
… 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].
[6] 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 passes to the defendant to show there is an arguable defence or some other reason there ought to be a trial of the action.[7]
[7] Westpac Banking Corporation v Anderson [53] - [54], [103]. See also v Lafferty [54] (Tottle J) and the authorities referred to.
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.[8]
[8] Lafferty [54] citing Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109 (Brinsden J), 113; Wallingford v Mutual Society (1880) 5 App Cas 685, 704 (Lord Blackburn).

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

The following facts, as verified by the affidavits filed by the plaintiff in support of the Application, make up the essential elements of the plaintiff's claim.
On 9 April 2021, the plaintiff and the defendant entered into a written loan agreement, which was varied in writing on or about 21 June 2021 (Loan Agreement).[9] The original amount of the loan the plaintiff agreed to advance to the defendant was $670,298.[10] The Loan Agreement was varied on about 21 June 2021 to split the loan into two separate loan accounts, being:
(a)$100,000.69 on account number 565773182 with interest payable at the then standard variable rate (Loan 1); and
(b)$569,453.00 on account number 46644037 with interest payable at a fixed rate for a period of 4 years and then at the prevailing standard variable rate (Loan 2),
(together the Loan).[11]
[9] Clifford Affidavit [5(a)], [14], Attachment 2, pages 6 -16.
[10] Clifford Affidavit, Attachment 2, pages 6 and 12.
[11] Clifford Affidavit, Attachment 2, pages 14 - 15.
The defendant agreed to repay the Loan to the plaintiff in accordance with the terms and conditions of the Loan Agreement.
As security for the Loan, the defendant executed and granted to the plaintiff a first registered mortgage over the Property in favour of the plaintiff, which was registered on 27 April 2021 and given Landgate registration number O713737 (Mortgage).[12]
[12] Clifford Affidavit [5(b)], [13], [15], Attachments 1 and 3. See also Clifford Affidavit, Attachment 2, Item K, page 11.
The Loan Agreement and the Mortgage incorporated by reference the terms contained in:
(a)the plaintiff's Usual Terms and Conditions for Consumer Mortgage Lending (Terms and Conditions);[13] and
(b)Memorandum of Common Provisions registered number O105372 (Memorandum).[14]
[13] Clifford Affidavit [6(a)], [14], Attachment 2, Section 2.
[14] Clifford Affidavit [6(b)], [15], Attachment 3, pages 100 - 133.
Pursuant to the Terms and Conditions:
(a)the plaintiff agreed to repay $100,000.69 under Loan 1 to the defendant, together with interest calculated at a variable rate of 2.79% at the time of the Loan Agreement;
(b)the plaintiff agreed to repay $569,453.00 under Loan 2 to the defendant, together with interest calculated at a four-year fixed rate of 2.24% and a variable rate from the end of the fixed interest period;
(c)the defendant secured all money owing under the Loan Agreement by the Mortgage;
(d)the defendant would be in default if he did not pay any of the amount owing under the Loan Agreement when it was due.
By cl 9 of the Terms and Conditions, if the defendant failed to repay any amount payable by the time required, the plaintiff could give the defendant notice of default requiring him to remedy the default within the time stated in the notice. If the default was not remedied by the time specified in the notice of default, the plaintiff was entitled to require the defendant to repay all amounts owing under the Loan Agreement immediately, to commence enforcement proceedings to recover the amount due together with interest and enforcement expenses, and to seek orders for possession of the Property.[15]
[15] Clauses 9.1(a), 9.2, 9.3, 9.4: Clifford Affidavit, Attachment 2, pages 49 - 50.
Under the terms of the Mortgage, the defendant promised to pay the plaintiff all money owed to it under the Loan Agreement at the time agreed or when requested by the plaintiff, as set out in the Memorandum.[16]
[16] Clauses A4, A21: Clifford Affidavit, Attachment 2, page 106.
Together cll A21 and A22 of the Memorandum are to substantially the same effect as cl 9 of the Terms and Conditions in relation to a failure by the defendant to pay amounts due to the plaintiff under the Mortgage.
As at 27 April 2023, in breach of the terms of the Loan Agreement and the Mortgage, the defendant had failed to pay the amount of $5,620 to the plaintiff when it was due and payable.[17]
[17] Clifford Affidavit [8].
A combined notice of default dated 27 April 2023 was issued to the defendant giving notice of default pursuant to the Loan Agreement, the Mortgage, s 106 of the Transfer of Land Act 1983 (WA) and s 88 of the National Credit Code (Default Notice).[18]
[18] Clifford Affidavit [9]; McTernan Affidavit [3], JBM1.
The Default Notice was sent to the defendant by registered post to the Property, as deposed to in the McTernan Affidavit.[19]
[19] McTernan Affidavit [2] - [4], JBM1, JBM2.
The Default Notice:
(a)stated that the defendant was in default of the terms of the Loan Agreement and the Mortgage for failing to pay the amount of $1,086.00 under Loan 1 and $4,534.000 under Loan 2, totalling $5,876.25 (Arrears);
(b)required the defendant to remedy the default by paying the Arrears to the plaintiff by no later than 9 June 2023;
(c)stated that, if the defendant did not remedy the default by paying the Arrears by 9 June 2023, the plaintiff would be entitled to sue the defendant for recovery of the full balance of the Loan then owing, which as at 27 April 2023 was $649,287.04, comprising $99,946.25 under Loan 1 and $549,340.79 under Loan 2, together with the amount of any further debits made to the account including further interest payable and any further enforcement expenses, and take steps to obtain possession of the Property.
The defendant failed to remedy the default within the time specified in the Default Notice.[20]
[20] Clifford Affidavit [10].
By operation of cl 9 of the Terms and Conditions and cll A21 and A22 of the Memorandum, the total amount owing under the Loan Agreement and Mortgage became immediately due and payable by the defendant to the plaintiff, and the plaintiff became entitled to recover the whole amount owing and to possession of the Property.
As at the date of swearing of the Clifford Affidavit, 23 April 2024, the amount owing by the defendant to the plaintiff under the Loan Agreement and Mortgage was:
(a)in relation to Loan 1, $107,584.56 with interest accruing at a rate of 7.04% per annum at a daily rate of $20.64;[21] and
(b)in relation to Loan 2, $568,074.25 with interest accruing at a rate of 2.24% per annum at a daily rate of $34.85.[22]
[21] Clifford Affidavit [16(a)].
[22] Clifford Affidavit [16(b)].
As deposed to in the Third Fernandez Affidavit, as at 29 October 2024, the amount owing to the plaintiff by the defendant was:
(a)in relation to Loan 1, $583,448.98 with arrears of $43,738 and interest accruing at a daily rate of $35.78;[23] and
(b)in relation to Loan 2, $111,391.99 with arrears of $12,513 and interest accruing at a daily rate of $21.48;[24] and
(c)the total amount outstanding and owed to the plaintiff by the defendant was $694,840.97 with interest accruing at a daily rate of $57.26.[25]
[23] Third Fernandez Affidavit [2(a)].
[24] Third Fernandez Affidavit [2(b)].
[25] Third Fernandez Affidavit [3].

The defendant's response to the Application

The plaintiff did not make separate or specific objections to particular parts or paragraphs of the defendant's affidavits, but objected to their admissibility in general terms, noting the defendant is acting in person and is not legally represented.
I accept the plaintiff's submission to the effect that the affidavits relied upon by the defendant comprise largely inadmissible assertions in the form of submissions, as opposed to evidence of facts giving rise to any defence or deposing to any other reason why there ought to be a trial of this action. The matters stated by the defendant do not directly respond to or address the essential elements of the plaintiff's claim.
I note that the defendant is a litigant in person. As such, he is entitled to some leniency in relation to compliance with the court rules.[26] It is appropriate that I approach the documents in which he articulates his case with some flexibility.[27] However, at the same time, I must ensure that any latitude given to him does not deprive the plaintiff of its right to procedural fairness and a fair hearing.[28]
[26] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 (Glew v Frank Jasper) [10].
[27] Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536 ‑ 537 (Kirby P), (543) (Hope & Samuels JJA agreeing); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J).
[28] Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51]; MTI v SUL [No 2] [2010] WASCA 58 [42] ‑ [43] (Newnes JA, with whom Pullin & Buss JJA agreed); Glew v Frank Jasper [10].
The defendant does not deny the establishment of or the existence of the Loan. He accepts that he signed a contract with the plaintiff.[29] The defendant is also the registered proprietor of the Property in respect of which funds were advanced under the Loan Agreement. However, he raises a number of arguments which he says amount to a defence to the plaintiff's claim or which raise issues or questions which ought to be tried.

Alleged discharge of the debt claimed

[29] Transcript of hearing on 29 October 2024, ts 35 - 36.

The defendant's primary position appears to be that the debt claimed by the plaintiff has been discharged in accordance with the terms and conditions of a settlement offer he made to the plaintiff by the documents attached to the First Deighton Affidavit, marked 'Annexure A'. The defendant also relies on a promissory note tendered by him to the plaintiff, by which he submits the debt claimed by the plaintiff has been discharged.
Included in Annexure A are copies of documents titled 'Notice of Settlement Offer', 'Notice of Tender of Payment' and 'Privately Registered Bonded Promissory Note', each dated 14 March 2024. Also included in Annexure A are copies of a delivery confirmation card, registered post slip, registered post receipt and correspondence between the defendant and the plaintiff.
The Notice of Offer of Settlement states that the defendant 'conditionally offer[s] to settle the account, claim or debt for the sum certain amount of $666,825.04 AUD.' It states, among other things:
…
That the acceptance of the amount offered for settlement finalizes (sic) and settles the account now and for all time; and
That the acceptance of the Calderbank offer will reflect a zero amount on the account or amounts claimed owing or outstanding; and
The acceptance of our Calderbank offer here now renders this matter and or claim final and extant, now and for all time, with an account balance of zero; and
That we make this Calderbank offer on a without recourse, without prejudice basis so as to save costs; and
That this Calderbank offer expires in 3 days from date of service;
Take notice that:
The promissory note supplied with this notice is for full and final settlement of the account / debt; and
If the promissory note supplied with this notice is on sold, traded upon, cashed or drawn upon, then your unwavering agreement and consent is here now formally given to verify that the payment of the amount on the promissory note is for full and final payment and settlement of the account;
If the promissory note is not accepted for full and final settlement of the account, then the promissory note is to be returned to me immediately;
The promissory note is ONLY to be traded on, on sold, drawn upon or cashed if agreed upon as full and final settlement amount;
The promissory note is expressly not consented to being used as a part payment, or installment (sic) in any way shape or form;
You now have 3 (three) days from the date of service of this notice of offer to respond or tacit acquiescence and or tacit procuration applies by way of your silence, where it will be deemed and agreed upon by all parties that this offer is here now accepted finalizing (sic) and settling this matter now and for all time;
:Luke-Anthony: of the House Deighton
_________________
Autograph
The Notice of Tender of Payment refers to enclosing a Promissory Note for the amount of $900,000 'for full and final payment' of the stated loan account numbers.[30] The Promissory Note is titled 'Privately Registered Bonded Promissory Note'. It is stated to be paid to the order of Alan Docherty C/O Commonwealth Bank in the amount of $900,000 and dated 14 March 2024.[31]
[30] First Deighton Affidavit, Annexure A, pages 11 - 12.
[31] First Deighton Affidavit, Annexure A, page 13.
Included in the copy correspondence between the defendant and the plaintiff in Annexure A to the First Deighton Affidavit is a copy of an email from the plaintiff to the defendant dated 27 March 2024.[32] The email refers to and responds to the defendant's letter addressed to Mr Docherty dated 14 March 2024 and the attached documents. The email states, amongst other things:
[32] First Deighton Affidavit, Annexure A, pages 26 - 28.
…
Your letter and the three documents contain a series of statements and contentions that have been characterised by Courts, both in Australia and overseas, as "organized pseudolegal (sic) commercial argument", which have been held to have no legal basis or effect.
CBA's position is that:
1.The documents provided by you do not alter the obligations as they exist between you and the CBA, in particular with respect to you (sic) loan accounts, having account numbers ending 3182 and 4037;
2.The document entitled Privately Register Bonded Promissory Note has no affect (sic) and does not discharge or vary the debt owing by you to CBA; and
3.The amount owing by you in respect of loan accounts, having account numbers ending 3182 and 4037 remain outstanding.
CBA strongly recommends that you obtain independent legal and financial advice regarding your position.
…
The defendant submits that the debt claimed by the plaintiff has been and remains discharged pursuant to ss 89-99 of the Bills of Exchange Act 1909 and that the plaintiff is in default of the agreement outlined in Annexure A to the First Deighton Affidavit. He submits that the fact the payment instrument (the promissory note) has not been returned by the plaintiff should be all the evidence the court requires as there is only one reason it would not have been returned. He says that is because, presumably, the Promissory Note has been traded on or sold and therefore accepted by the plaintiff.
In the Second Deighton Affidavit, the defendant repeats his assertion that the debts to the plaintiff have been discharged in accordance with the notices and promissory note sent to the plaintiff by him on 14 March 2024. The defendant also made submissions to this effect at the hearing of the Application.

Allegations concerning execution of the Loan Agreement and failure to produce certified copy

The defendant also disputes that the Loan Agreement relied upon by the plaintiff has been properly executed. His contention was to the effect that the Loan Agreement was not executed by the plaintiff in accordance with the requirements of s 127 of the Corporations Act 2001 (Cth).
The defendant also states that the plaintiff has failed to produce a certified true copy of a contract signed by a living representative of both parties. He says that the plaintiff is unable to sign documents because it is a corporation and not living.
Attached to the First Deighton Affidavit as 'Annexure B' is a copy of correspondence from the defendant addressed to "CEO OF COMMONWEALTH BANK Matt Comyn" dated 14 June 2023, 25 July 2023 and 12 September 2023, which are stated to be from 'Crown in the right of Luke Anthony Deighton'.[33]
[33] First Deighton Affidavit, Annexure B.
It is not necessary that I repeat the matters stated in those letters. They refer to letters addressed to 'General Manager Financial Assistance Solutions Commonwealth Bank' stating that payments of principal, interest, costs, fees and other charges relating to any claimed accounts between the defendant and the plaintiff have ceased until such time as the plaintiff provides to the defendant a certified copy of the contract, and other matters.
The defendant also made submissions in relation to each of these matters at the hearing of the Application.

Alleged breaches of fiduciary duty and suspicion of fraud

The defendant made submissions to the effect that the plaintiff is a fiduciary and owes fiduciary obligations to the defendant which it has breached, including to provide full disclosure to him, to respond to his requests for documents and information, a duty not to gain an undue advantage, not to profit or to act in its own interests or contrary to those of the defendant. The defendant relied upon Bray v Ford[34] and Commonwealth Bank of Australia v Smith[35] in support of his submissions to the effect that a bank owes fiduciary obligations. He also referred to an article published in the University of Queensland Law Journal.[36]
[34] Bray v Ford [1986] AC 44.
[35] Commonwealth Bank of Australia v Smith (1991) 44 FCR 390.
[36] M. Cope, 'The Equitable Obligation of a Purchaser, Who is a Fiduciary, To Make Full Disclosure of Material Information, 'University of Queensland Law Journal Vol 12, No. 2: 74-100.
The defendant also raised what he described as his suspicion of fraud on the part of the plaintiff but did not elaborate as to what is said to amount to fraudulent conduct.
He submitted, in effect, that these are issues that should be tried and the court should order a full independent forensic audit into the accounts in question.

Determination

I will deal first with the application for leave to bring the application out of time.

Application for leave to bring the application for summary judgment

The defendant entered an appearance on 14 February 2024.
Ms Fernandez deposes in the First Fernandez Affidavit to the reasons for the delay in bringing the Application.
On 28 February 2024, the plaintiff's solicitors wrote to the defendant advising they were instructed by the plaintiff to prepare an application for summary judgment.[37]
[37] First Fernandez Affidavit [4], APF1.
Between 1 and 11 March 2024, there were communications between the plaintiff and the defendant, in which the defendant requested copies of documentation, which was provided to him by the plaintiff.[38] On 14 March 2024, the defendant advised the plaintiff by email that he had sent a settlement offer by registered post that day.[39] The settlement offer is that already referred to and attached to the First Deighton Affidavit in Annexure A together with the promissory note.
[38] First Fernandez Affidavit [5] - [6].
[39] First Fernandez Affidavit [7].
The plaintiff put enforcement action on hold while investigating the matters the subject of the defendant's communications and treated them as a complaint.
On 22 March 2022, the plaintiff instructed its solicitors to hold further enforcement action as a complaint had been raised by the defendant.[40] On 8 April 2024, the plaintiff's solicitors were advised that the complaint had been closed and steps were taken to prepare the Application.[41]
[40] First Fernandez Affidavit [8].
[41] First Fernandez Affidavit [11] - [21].
The plaintiff's solicitors sent a letter dated 10 April 2024 to the defendant in response to his request for copies of documents enclosing a copy of the Loan Agreement dated 9 April 2021, the Mortgage dated 27 April 2021; Terms and Conditions and Memorandum.[42] In that letter, the plaintiff also reiterated that the promissory note had not, and would not, be accepted by the plaintiff in payment of the debt and stated that payments to the defendant's loan account could be made by direct transfer of funds or bank cheque. The plaintiff's solicitors informed the defendant that they were instructed to proceed with enforcement action and make an application for summary judgment.
[42] Second Fernandez Affidavit [2], [3], APF1.
I am satisfied on the evidence before me that, although there was a delay in bringing the Application, the delay of approximately two and a half months is not an undue delay and was justifiable in the circumstances. The Application is still brought at an early stage of the proceedings, before a defence has been filed and any significant expense has been incurred. There is no evidence of any prejudice to the defendant caused by the relatively short delay in bringing the Application.
As noted, the merits of the application are also a relevant consideration. For the reasons that follow, I am satisfied that there is no defence to the plaintiff's claim. To require strict compliance with the rules would work an injustice upon the plaintiff and to allow the matter to proceed to trial would not be in the interests of justice.
In the circumstances, I am satisfied that the time for bringing the Application should be extended to the date it was filed, being 20 May 2024.

Application for summary judgment

Mr Clifford, an officer of the plaintiff, deposes in the Clifford Affidavit to the facts verifying the claim and attaches copies of the Loan Agreement, Mortgage, the Terms and Conditions and Memorandum, as I have referred to. He also deposes to his belief, on behalf of the plaintiff, that there is no defence to the plaintiff's claim.
Mr McTernan verifies service of the Default Notice on the defendant in the McTernan Affidavit.
The defendant borrowed money from the plaintiff which he agreed to repay under the terms of the Loan Agreement and Mortgage. The defendant has defaulted on the Loan, he has been given notice of default, which he failed to remedy within the time specified in the Default Notice.
I am satisfied on the evidence before me that the defendant has not paid the amount owing to the plaintiff. Mr Clifford and Ms Fernandez have verified the amount that remains due and payable by the defendant to the plaintiff under the terms of the Loan Agreement and Mortgage.
I am satisfied 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 recover the amount owing and to possession of the Property under the terms of the Loan Agreement and the Mortgage.
The defendant states there are no grounds for summary judgment, but he does not condescend to particulars or depose to any facts that give rise to an arguable defence to the plaintiff's claim, recognised at law. The arguments advanced by the defendant have no basis in law, do not raise a defence to the plaintiff's claim or any other reason why this action should proceed to a trial.
As to the defendant's contentions regarding the settlement offer and promissory note, the defendant by his offer acknowledges the debt owed to the plaintiff. There is nothing obliging the plaintiff to accept the offer of payment by way of promissory note.
The plaintiff's solicitors sent the letter to which I have referred to the defendant on 10 April 2024[43] by post to the Property and by email stating in clear terms that:
(a)the promissory note has not and will not be accepted by the plaintiff in payment of the debt;
(b)if the defendant wished to settle the debt, the plaintiff would accept payment by transfer of funds or bank cheque;
(c)a promissory note or bill of exchange presented to the plaintiff will be rejected; and
(d)they were instructed to proceed with enforcement action and to make an application for summary judgment.
[43] Second Fernandez Affidavit [2] - [3], AFP 1.
As submitted on behalf of the plaintiff, the 'notice of tender of payment' acknowledges the existence of the loan. However, it does not operate to discharge the amount owed or the defendant's liability to repay the loan and the interest payable.
In Westpac Banking Corporation v Davey,[44] Acting Master Strk (as her Honour then was) considered a similar defence advanced by the defendant in that proceeding, and stated:
… the delivery of a promissory note to a bank cannot of itself discharge any liability that a borrower has to the bank under a mortgage and a loan agreement, including in circumstances where the promissory note is not returned nor expressly rejected by the bank. This defence is also doomed to fail.
[44] Westpac Banking Corporation v Davey [2016] WASC 316 [37], referring to ING Bank (Australia) Limited v Wilson [2013] SASC 6 (ING Bank v Wilson); Maksacheff v Commonwealth Bank of Australia (No 2) [2016] NSWSC 1109 (Maksacheff (No 2)); St George Bank v Hammer (No 2) [2015] NSWSC 953.
In Maksacheff v Commonwealth Bank of Australia (No 2),[45] McColl JA and Emmett AJA referred to similar arguments having emerged in other courts and stated:
… litigants in person have sought to dispute indebtedness and/or sought to recover liquidated damages by spurious arguments contending, for example, that documents got up as either bills of exchange or promissory notes have discharged their liability and/or that the creditor's failure to accept them has breached a contract. All these submissions have been dismissed. Jagot J described such submissions before her as "obscure, impenetrable, hopeless nonsense"[46] an expression apt to describe those advanced in this Court.
[45] Maksacheff [99].
[46] Atkinson v Federal Commissioner of Taxation [2014] FCA 1217 [30].
In Australia and New Zealand Banking Group Limited v Evans,[47] the New South Wales Supreme Court said that the notion of a debt being discharged by a bank's silence or inaction is nonsense and that there is no substance for such a claim.
[47] Australia and New Zealand Banking Group Limited v Evans [2016] NSWSC 1742 [54] (Garling J).
In ING Bank v Wilson,[48] in which Burley J was dealing with an argument in similar terms to that advanced by the defendant, his Honour stated:
… the tender of the promissory note and its retention by the plaintiff does not have the effect of discharging the defendants from their obligations under the mortgage. That being the case, the defendants' subsequent default in paying instalments under the mortgage constitute a breach of the mortgage because the terms and conditions of the mortgage were still operative at all material times.
[48] ING Bank v Wilson [15] (Burley J).
As submitted on behalf of the plaintiff, it is clear from these and other authorities dealing with similar arguments concerning promissory notes and bills of exchange, that the delivery of the promissory note by the defendant on unilateral terms does not amount to acceptance, payment or discharge of any amount owed by him to the plaintiff. It provides no arguable defence to the plaintiff's claim.
Nor do any of the other matters deposed to by the defendant, or otherwise referred to in the material filed by him, give rise to an arguable defence to the claim. Even allowing the defendant some latitude as a litigant in person, the assertions he makes in his affidavits and submissions have no legal or evidentiary basis.
The arguments the defendant raises to the effect that the contract between him and the plaintiff has not been properly executed or that he is not liable to repay the amount owing in respect of the Loan because certified copies of the 'contract' and related documents have not been produced do not give rise to an arguable defence or a triable issue.
The defendant does not dispute that he signed a contract with the plaintiff. I have adopted the term and referred to the contract between the parties as the Loan Agreement. The defendant's signature appears on the copy of the Loan Agreement attached to the Clifford Affidavit.[49] This is not disputed by the defendant.
[49] Clifford Affidavit, Attachment 2, Consumer Credit Contract Schedule page 13.
The 'Contract' is defined in cl 1 of the Terms and Conditions as the Schedule signed by the defendant and the Terms and Conditions. The 'Schedule' is defined in cl 1 of the Terms and Conditions as 'The Consumer Credit Contract Schedule we give you (including any Schedule replacing an earlier Schedule) that sets out key details of your Contract or the Contract as varied.'
Copies of those documents, together with the Terms and Conditions and Memorandum, were provided to the defendant in response to his requests, as outlined earlier in these reasons.
The defendant signed the schedule affirming his assent to the contract and it terms, which are expressly referred to in the schedule and incorporated by reference. The defendant has not raised any issue or adduced any evidence to suggest any misrepresentation or duress at the time of him signing the Loan Agreement or any other vitiating element in relation to the incorporation of the terms in the Loan Agreement.
As to the defendant's contention to the effect that the Loan Agreement has not been executed in accordance with s 127 of the Corporations Act, as submitted by the plaintiff, s 127 does not mandate how a document or contract is to be signed by a corporation. It is permissive in nature. So much is evident from the word 'may' in subparagraphs (1), (2) and (3). Section 127(4) expressly provides that s127 does not limit the ways in which a corporation may execute a document.
The defendant also contends that the plaintiff has failed to produce a certified true copy of a contract signed by a living representative of both parties and that the plaintiff, as a corporation, is not a living person. Such theories, and variants of such theories, have been described in other decisions of this court as 'pseudo‑law'.[50]
[50] See for example Kelly v Fiander [2024] WASC 275 [26] - [29] (Musikanth J); Kelly v Fiander [2023] WASC 187 [10] - [13] (Vandongen J); Yap v Matic [No 4] [2022] WASC 422 [23] (Solomon J); Yap v Matic [No 7] [2023] WASC 55 [44] (Solomon J).

As observed by Musikanth J in Kelly v Fiander,[51] such theories have been repeatedly rejected by Australian courts, including this court, having been variously described as 'nonsense', 'nonsensical', 'fundamentally misguided' and 'gobbledygook'.
[51] Kelly v Fiander [29]; Stefan v McLachlan [2023] VSC 501; (2023) 105 MVR 214 [28] (J Dixon J); Branch v Town of Victoria Park [2023] WASC 231 [65] (Seaward J); Deputy Commissioner of Taxation v Casley [2017] WASC 161 [15] (Le Miere J).
As the Court of Appeal stated in Connell v Australia and New Zealand Banking Group Limited,[52] it is sufficient for a bank to produce what is deposed to be a true copy of the original loan agreement. The evidence adduced by the plaintiff includes what are deposed to as being true copies of the Loan Agreement signed by the defendant, the Terms and Conditions and the Memorandum.
[52] Connell v Australia and New Zealand Banking Group Limited [2023] WASCA 48 [24].
There is no evidence to support the defendant's assertions that the plaintiff is in breach of any fiduciary obligation or to support his unparticularised suspicion of fraud. The authorities the defendant relies upon do not support his contentions. There was no special relationship between the plaintiff and defendant in the circumstances of this case that gives rise to any fiduciary obligation on the part of the plaintiff bank.
The Loan Agreement the subject of these proceedings is a conventional consumer loan agreement secured by a mortgage. There is no fiduciary relationship or relationship of trustee and primary beneficiary established by the loan and mortgage and no obligations of disclosure, or otherwise, as contended by the defendant.
There is no evidence that the plaintiff bank assumed the role of advisor or acted in any other capacity that would put it in a position of fiduciary in relation to the defendant. The materials filed by the defendant provide no evidentiary basis for the defendant's assertions that the plaintiff has gained any 'undue advantage' to support any fraud on the part of the plaintiff, or to ground any duty giving rise to any requirement for, or entitlement to, an audit of the accounts.
The matters referred to in the defendant's affidavits do not disclose any facts that may constitute a genuine or arguable defence to the plaintiff's claim. The defendant has not discharged his evidentiary burden of establishing any defence to the claim, that there is an issue or question 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 on the evidence before me, exercising the proper degree of care, that this is such a case, and that it is appropriate to grant summary judgment. In my view, the plaintiff's claim is established on the evidence, there is no arguable defence to the claim or any other reason why there should be a trial.

Conclusion and orders

For these reasons, I was satisfied that the time for bringing the Application should be extended to 20 May 2024 and I made an order to that effect. I granted the plaintiff's application for summary judgment and entered judgment in the amount of $694,840.97 plus interest from the date of judgment to payment as provided in cl 9.7 of the Terms and Conditions and cl A27.1 of the Memorandum. I also made an order that the defendant deliver up vacant possession of the Property to the plaintiff within 28 days of the date of the orders, that is by 27 November 2024.
The plaintiff, having succeeded in the Application, and there being no reason to depart from the usual order as to costs, I also made an order that the defendant pay the plaintiff's costs of the action, including the costs of the Application, to be taxed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AP
Associate to Master Russell
5 NOVEMBER 2024