Commonwealth Bank of Australia v Ford
[2012] WASC 263
•3 JULY 2012
COMMONWEALTH BANK OF AUSTRALIA -v- FORD [2012] WASC 263
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 263 | |
| Case No: | CIV:3057/2010 | 3 JULY 2012 | |
| Coram: | McKECHNIE J | 3/07/12 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Applications for summary judgment dismissed Application for cross-vesting dismissed | ||
| B | |||
| PDF Version |
| Parties: | COMMONWEALTH BANK OF AUSTRALIA DAVID CHRISTOPHER FORD ANNETTE FORD |
Catchwords: | Practice and procedure Application by bank for summary judgment Serious issue to be tried Application by Defendant to cross-vest proceedings in Family Court Not in interests of justice No new principles |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
DAVID CHRISTOPHER FORD
First Defendant
ANNETTE FORD
Second Defendant
Catchwords:
Practice and procedure - Application by bank for summary judgment - Serious issue to be tried - Application by Defendant to cross-vest proceedings in Family Court - Not in interests of justice - No new principles
Legislation:
Nil
Result:
Applications for summary judgment dismissed
Application for cross-vesting dismissed
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : Mr G M Abbott
First Defendant : In person
Second Defendant : In person
Solicitors:
Plaintiff : Gadens Lawyers
First Defendant : In person
Second Defendant : In person
Case(s) referred to in judgment(s):
Nil
(Page 3)
- McKECHNIE J:
How this matter comes to court
1 On 22 December 2010 the plaintiff, the Commonwealth Bank, issued a writ of summons against the first defendant and the second defendant, each of whom entered a memorandum of appearance. The action is for a debt due under a mortgage and guarantee.
2 The proceedings have progressed to the point where the bank has filed an application for summary judgment in particular supported with affidavits in respect of the second defendant. The second defendant has responded in detailed affidavits with annexures opposing the bank and seeking other orders. I have read all of the affidavits filed by each party prior to coming to court.
The second defendant's cross vesting application
3 On 28 March 2012 the plaintiff issued a chamber summons, returnable today. In response the second defendant filed a chamber summons seeking leave to bring the application and an order that the court transfer all the proceedings currently before the court to the Family Court of Western Australia.
4 The second defendant is a self-represented person who has no doubt been trying to unravel various matters for some time. It appears from what she says that there was a property settlement in the Family Court between she and the first defendant in September 2010 and there are proceedings afoot, instituted, I infer, by her, to set aside that property settlement.
5 In broad terms the bank is pursuing her in this court under a guarantee which the bank asserts that she signed. The second defendant raises issues which I can summarise broadly as undue influence by the first defendant and unconscionability on the part of the bank in entering into the various agreements.
6 Those are matters which can be resolved in this court. I am less clear whether they can be resolved in the Family Court because it appears at this stage that the bank is not even party to the proceedings in the Family Court. I am unsure how the bank could be a party to the proceedings in relation to the property settlement as between the first defendant and second defendant.
(Page 4)
7 While the guarantees and the mortgages are relevant, the Family Court's jurisdiction in relation to the matter is principally related to property issues between the parties. It does not seem to me that even the threshold question is able to be answered in favour of the second defendant. I am not at all persuaded that it would be in the interests of justice to transfer proceedings where the bank is not yet a party, and to a court which may have very limited ability to make the rulings which the second defendant would appear to seek.
8 The Rules of the Supreme Court O 81E(6)(3) also require that the summons should be taken out within seven days of the delivery of the process that invokes cross-vesting laws. There is, of course, power to the court to extend time, but the rule does indicate, for sensible reasons, that cross-vesting decisions should in general be made earlier rather than later in proceedings.
Conclusion on cross vesting application
9 Above all, the court is interested in the interests of justice in a wide sense, not only directed to the parties, although the parties' interests have a relevance. In this case I am not persuaded that, having regard to where the stage these proceedings have reached and the uncertainty in relation to the Family Court proceedings, about which I have only limited information, an order for cross-vesting would be in the interests of justice, and I therefore dismiss the application.
Applications for summary judgment
10 I have before me two applications for summary judgment: one from the plaintiff and one from the second defendant. The first defendant has been present this morning but, apart from asking some pertinent questions, has played no part in the proceedings.
The plaintiff's application
11 The action was commenced by writ on 22 December 2010. A memorandum of appearance was filed. This application for summary judgment by the bank, with which I deal first, was not filed until 16 April 2012. Leave is therefore necessary to bring it. I am satisfied by the explanations provided by the bank. Leave should be granted to bring the application.
12 The writ claims that the plaintiff and the first defendant entered into a loan agreement and that in due course a mortgage was entered into between the plaintiff and the second defendant, together with a guarantee
(Page 5)
- between the plaintiff and the second defendant. Money was advanced by the bank.
13 The bank's application for summary judgment seeks and order that:
(a) the second defendant pay the plaintiff the amount owing pursuant to the guarantee as at the date of judgment plus interest; and
(b) a declaration that the plaintiff is lawfully in possession of the land at 36 Boulonnais Drive, Brigadoon.
14 The principles in relation to applications for summary judgment are well-settled. In this case in relation to par (a) of the application, I am not satisfied that it is appropriate to order summary judgment. While the documents appear to be signed by her, the second defendant, in affidavits which have been filed in opposition to this application, has made a number of claims and allegations which I will compendiously describe as undue influence in relation to the first defendant, and unconscionability in relation to the actions of the plaintiff.
15 I do note that within the documentation supplied by the bank there does not appear to be any documentation or any indication that the second defendant received independent financial or legal advice prior to entering into the guarantees. However, it is not my task to decide today whether there was undue influence, or whether there was unconscionability.
16 The first defendant vehemently denies that there was any undue influence or fraud on his part and the bank, through counsel, does not concede at all that there was unconscionability. That is clearly an issue that will have to be tried in due course after pleadings and the issue is more crisply identified than it can be in affidavits.
17 Mr Abbott for the bank made some reasonable points in relation to the question of unconscionability and the relationship between the plaintiff and the second defendant that demonstrates an imbalance (and I am summarising his arguments), but I bear in mind that the second defendant is a litigant in person having to deal with this litigation herself. She is doing a reasonable job but is not legally trained. I am satisfied that she has raised a serious issue which needs resolution. Even if it is not crisply identified at the moment, I understand the gist of the issue. Therefore, I do not grant the plaintiff's first orders sought.
18 The declaration in relation to (b) is a little different for two reasons. The first is that I am not sure such a declaration is necessary. The
(Page 6)
- plaintiff has apparently exercised its rights and is in possession of the property. The bank's rights in relation to the mortgage of course relate not only to the second defendant who has challenged the validity of the mortgage as against her. The bank also has joint and several rights against the first defendant who does not challenge the validity of the mortgage. The bank is able to exercise what rights it considers under the mortgage in respect of the property having regard to the position of the first defendant.
19 Because the bank is in possession, I do not see a need to make a declaration that it is lawfully in possession. It has rights. It can exercise them. If those rights wish to be challenged, they are not crisply challenged and identified in these proceedings by the second defendant and she will have to do so. But, there is a considerable obstacle for her because the first defendant does not challenge the bank's exercise of its rights in relation to his liabilities.
20 So for those reasons I would not grant the plaintiff's application, although in view of a matter which the second defendant raised in conclusion, I should say that I do not consider the application was wrongly brought. The bank was entitled to rely on the documentation which is apparently signed by the second defendant. It is because that documentation is challenged that the matter is going to trial.
The second defendant's application for summary judgment
21 I turn now to the second defendant's application for summary judgment, which is that the court re-open the transaction under the National Credit Code and grant relief under that code and a declaration that the second defendant is lawfully to be in possession of the land, and other consequences.
22 This is not a clear case where the second defendant has established that there is a breach of the National Credit Code, or indeed that the bank has acted in any way improperly. The documentation to which I have earlier referred does not, on its face, make plain the fact that the transaction is an impugned transaction that should be set aside. That is a matter which will have to be tried, and certainly I would not grant an application for a summary judgment.
23 Also, the declaration that the second defendant is lawfully to be in possession of the land is not a declaration I make. The fact appears to be that the bank is currently in possession of the land pursuant to its rights at least in relation to the first defendant, and it would be very much in issue
(Page 7)
- whether such a declaration sought by the second defendant is available to her. So the net result is that I would dismiss both the plaintiff's and the second defendant's applications for summary relief. I think the appropriate procedure now is to refer this matter back for case management.
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