Commonwealth Bank of Australia v Moir - [2024] WASC 319

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   COMMONWEALTH BANK OF AUSTRALIA -v- MOIR [2024] WASC 319
CORAM:   LEMONIS J
HEARD:   9 APRIL & 6 JUNE 2024
DELIVERED          :   19 SEPTEMBER 2024
FILE NO/S:   CIV 1453 of 2023
BETWEEN:   COMMONWEALTH BANK OF AUSTRALIA
Plaintiff

AND

GLENN DESMOND MOIR
Defendant

Catchwords:

Plaintiff and defendant enter into three separate home loan agreements - Defendant's obligations secured by a registered mortgage over a particular property - Plaintiff alleges that defendant is in default of each home loan - Plaintiff demands payment of entirety of amount owing - Defendant does not make any payment at all after demand made - Plaintiff commences these proceedings seeking judgment for the entirety of the amount outstanding and also possession of the property - Plaintiff applies for summary judgment - Objections raised that the court does not have jurisdiction to hear plaintiff's action - Further issues raised as to whether the named defendant is a legal persona

Legislation:

Credit Act (WA)
National Consumer Credit Protection Regulations 2010 (Cth)
National Credit Code 2014 (Cth)
Rules of the Supreme Court 1971 (WA)
Supreme Court Act 1935 (WA)
Transfer of Land 1893 (WA)

Result:

The plaintiff is entitled to summary judgment

Category: B

Representation:

Counsel:

Plaintiff	:	E L Blewett
Defendant	:	In person

Solicitors:

Plaintiff	:	Corrs Chambers Westgarth
Defendant	:	In person

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

Bunbury Foods Pty Ltd v National Bank of Australasia Ltd (1984) 153 CLR 491
Caratti v Zhou [2024] WASCA 39
Connell v Australia and New Zealand Banking Group Limited [2023] WASCA 48
Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18
Deputy Commissioner of Taxation v Casley [2017] WASC 161
George 218 Pty Ltd v Bank of Queensland Ltd [2015] WASC 434
Kelly v Fiander [2024] WASC 275
Lashansky v Legal Practice Board of Western Australia [No 3] [2013] WASCA 260
Re Coles Supermarkets Australia Pty Ltd [2022] VSC 438
Re Magistrate M M Flynn; Exparte McJannett [2013] WASC 372
Secure Funding Pty Ltd v Anand [2023] WASC 441
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
Westpac Banking Corporation v Anderson [2017] WASC 106

LEMONIS J:

These proceedings concern three home loan agreements which the plaintiff says it made with the defendant.
The loans are in the sum of $150,000, $175,000 and $41,000 respectively. They total $366,000.
The plaintiff says the defendant's obligations under the home loans are secured by a mortgage that the defendant granted in favour of the plaintiff over a property at 205 Neames Road, Mindarra (the Property).[1] The mortgage is registered on the certificate of title for the Property.
[1] This is the whole of the land comprised in certificate of title vol 1607 fol 576.
The plaintiff says the defendant defaulted in his payment obligations arising under each loan agreement, and that the defendant did not remedy the defaults after being served with notices of default for each home loan. As a consequence, the plaintiff demanded that the defendant pay all of the moneys the subject of each home loan, including the outstanding principal. The defendant did not make any payment in response to those demands.
The plaintiff then brought these proceedings. Broadly speaking, the plaintiff seeks judgment for the outstanding amounts due under each home loan, possession of the Property and costs on a full indemnity basis. The plaintiff applied under O 14 r 1 of the Rules of the Supreme Court 1971 (WA) for summary judgment. The plaintiff needs an extension of time within which to bring the application; it was made a few days out of time.
The application came on for hearing before me. A person appeared at the hearing to oppose the application. The person described himself by the name of 'Glenn Desmond' saying he was the executor of the so‑called named defendant, being the state‑created capital lettered trust account 'GLENN DESMOND MOIR'.[2] The person did not, however, accept that he was the defendant. This person's submissions were made in opposition to the plaintiff's application and therefore, in effect, to advance the position of the defendant. I will therefore refer to those submissions as being the defendant's submissions. No other person appeared at the hearing in opposition to the plaintiff's application.
[2] ts 37.
I will address the plaintiff's application in the following order. First, I will set out the relevant principles. Secondly, I will set out the procedural history. Thirdly, I will address the necessary preconditions to the making of an application for summary judgment. Fourthly, I will address the plaintiff's claim and whether it has demonstrated a prima facie right to summary judgment. Fifthly, I will address the matters raised by the defendant. Finally, I will decide whether it is appropriate to grant summary judgment.

Relevant principles

The principles applicable to this application are well‑established. In Sutton Investments Pty Ltd v Realistic Investments Pty Ltd,[3] the Court of Appeal in a joint judgment observed:
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. 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. (case references omitted)
[3] Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24].
Further, if the plaintiff establishes a prima facie right to summary judgment, the defendant assumes an evidentiary burden to satisfy the court that there is an issue or question in dispute which ought to be tried, or that there ought for some other reason to be a trial. However, the overall legal burden of persuasion that the application for summary judgment should be granted always remains with the applicant. So in this case, it remains with the plaintiff.[4] In this respect, the fact that a defendant does not positively establish a defence does not mean there may not be a question in dispute which ought to be tried.[5]
[4] Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18, 24.
[5] Cordinup (20, 34).
The court has a broad discretion as to whether to grant leave to apply for summary judgment out of time.[6] The requirements for leave will not ordinarily be demanding if, on its face, the application has some merit.[7] The extent of the delay is also relevant, as is any prejudice caused to the defendant by reason of the delay.
[6] Westpac Banking Corporation v Anderson [2017] WASC 106 [38].
[7] Lashansky v Legal Practice Board of Western Australia [No 3] [2013] WASCA 260 [48].

Procedural history

The relevant procedural history is as follows.
The plaintiff sought and obtained an order for substituted service. Service was effected in accordance with that order. The defendant did not immediately enter an appearance. The plaintiff then applied for default judgment. Ultimately, on 15 September 2023 a conditional appearance was filed. An application was not made to decide the question raised by the conditional appearance. Accordingly, by 29 September 2023 the conditional appearance became and operated as an unconditional appearance.[8]
[8] Rules, O 12 r 6(2).
Pursuant to O 14 r (1), an application for summary judgment needed to be brought within 21 days after the appearance or at any later time by leave of the court. The 21 days expired on 20 October 2023. On 25 October 2023, the plaintiff filed an application for summary judgment. The application initially came on for hearing before me on 9 April 2024. It was then adjourned to a further hearing, which ultimately took place on 6 June 2024.
The principal affidavit relied on by the plaintiff in support of its application is that of Mr Di Gregorio sworn 25 October 2023. Mr Di Gregorio had previously sworn two affidavits in support of the plaintiff's application for default judgment on 9 August and 18 August 2023. He is a manager in the somewhat elaborately named Customer & Collateral Management, Group Credit Structuring division of the plaintiff. I will refer to the affidavit sworn 9 August 2023 as the first Di Gregorio affidavit, the affidavit sworn 18 August 2023 as the second Di Gregorio affidavit and the affidavit sworn 25 October 2023 as the third Di Gregorio affidavit. Subsequent to the first hearing day, the plaintiff filed two further affidavits of Mr Di Gregorio, sworn 19 April and 20 May 2024. I will refer to these affidavits as the fourth and fifth Di Gregorio affidavits respectively.
The plaintiff also relies on an affidavit of Mr Werner affirmed 10 August 2023 (Mr Werner's affidavit), which was also filed in support of the application for default judgment. Mr Werner is a lawyer employed by the plaintiff's solicitors. Finally, the plaintiff relies on an affidavit of Mr Ralston sworn 20 December 2023 in support of the summary judgment application. Mr Ralston is a senior manager in the Group Credit Structuring division of the plaintiff.
The plaintiff filed and served an outline of submissions in support of the application.
An affidavit sworn 20 September 2023 of 'The living man ''Glenn Desmond'', of the family "Moir"' was filed in opposition to the application. Perhaps indicative of the approach taken in opposition to the plaintiff's application, the affidavit described the person making it as 'I, the soul, 'Noellwolf', in and through the living man 'Glenn Desmond''. Further, a document titled 'tabled points of pertinacity and intransigence in support of the "Defendant's" challenge to the "Plaintiff's"' application for summary judgment was provided to the court. This document states it is filed on behalf of 'The living man "Glenn Desmond"'. It is 377 pages.
Subsequent to the first hearing, a significant amount of further material was provided, apparently on behalf of the living man Glenn Desmond. This included material provided on 26 April 2024, 3 May 2024, 13 May 2024, 20 May 2024, 28 May 2024, 5 June 2024, 14 June 2024, 15 June 2024, 24 July 2024, 5 August 2024 and 12 August 2024.
I will now proceed to address the matters raised by the plaintiff in support of its claim before turning to the submissions made in opposition.

Preconditions to the making of an application for summary judgment

This proceeding is a mortgage action within the meaning of O 4AA. Accordingly, pursuant to O 4AA r 3(2), a notice in Form 4 was required to be attached to the front of the writ when it was served.
Further, O 14 r 1 and r 2 of the Rules set out certain procedural preconditions to the making of an order for summary judgment. They are:
1.a statement of claim has been served on the defendant;
2.the defendant has entered an appearance;
3.the application is supported by an affidavit verifying the facts on which the claim is made; and
4.the affidavit in support states that in the deponent's belief, there is no defence to the claim.
The statement of claim was contained on the writ of summons. Service of the writ of summons was effected in accordance with the order for substituted service made 27 June 2023. Thus, the statement of claim has been served. Further, the required notice in Form 4 was attached to the front of the Writ of Summons.[9]
[9] Affidavit of service of Emerald Denise Petrie affirmed 6 June 2023, pars 2 to 5 and annexure EDP2.
In respect of the requirement that the defendant has entered an appearance, as explained above, a conditional appearance was initially filed. It became unconditional with effect from 29 September 2023.
The application is supported by a number of affidavits verifying the facts on which the plaintiff's claim is made. The third Di Gregorio affidavit at par 8 states that Mr Di Gregorio believes the defendant has no defence to the plaintiff's claims.
The pre-conditions are therefore satisfied.

The plaintiff's claim

By way of background, the plaintiff says that in 2007 it entered into three loan facilities with the defendant.[10] Those loans were secured by a registered mortgage over the Property. The mortgage incorporated the plaintiff's memorandum of provisions numbered J584291,[11] to which I will return later. The mortgage was numbered K386598. It was registered against the certificate of title to the Property on 23 October 2007.[12]
[10] Ralston affidavit pars 6, 7 and attachments referred to at par 7.
[11] Ralston affidavit, page 43, cl 2.1.
[12] Ralston affidavit, page 46.
In 2016, the 2007 facilities were refinanced. Three new facilities were granted to the defendant. For ease of reference, I will call these the first, second and third home loans. The home loans were put in place by consumer credit contract schedules which are annexed to the first Di Gregorio affidavit. The home loans incorporated the plaintiff's usual terms and conditions for consumer mortgage lending.[13]
[13] First Di Gregorio affidavit, annexure GG6.
The documents constituting each of the home loans and the mortgage were put into evidence as attachments to Mr Di Gregorio's first affidavit. Those attachments are described as 'true copies' of the relevant document, which is sufficient for the documents to be received into evidence.[14]
[14] Connell v Australia and New Zealand Banking Group Limited [2023] WASCA 48 [24].
The first home loan was for the sum of $150,000.[15] This amount was debited to an account in the defendant's name on 28 January 2016.[16]
[15] First Di Gregorio affidavit, page 13.
[16] First Di Gregorio affidavit, page 91.
The second and third home loans were the subject of the same consumer credit contract schedule. They were, respectively, for the sums of $175,000 and $41,000.[17] These amounts were debited to a different bank account in the defendant's name on 28 January 2016.[18]
[17] First Di Gregorio affidavit, page 62.
[18] First Di Gregorio affidavit, pages 93, 95.
The total of the funds the subject of the three home loans was $366,000.
The terms of the mortgage provide that it secures all amounts owing under any Secured Agreement. The phrase 'Secured Agreement' is defined, relevantly, as an agreement between the plaintiff and the defendant whenever made which the defendant acknowledges in writing to be an agreement to which the mortgage extends.[19] Each of the consumer credit contracts stated at item K that the security for the defendant's obligations was 'Registered mortgage over [the Property]'.[20] Thus, the mortgage extends to the consumer credit contracts.
[19] First Di Gregorio affidavit, page 75.
[20] See item K of the respective consumer credit contracts, pages 17 and 66 of the first Di Gregorio affidavit.
The plaintiff says the defendant defaulted in payment due under each of the first, second and third home loans. I address the alleged defaults commencing at paragraph 41 below.
Consequently, on or about 10 November 2022 the plaintiff caused three notices of default to be served on the defendant. The notices were in respect of the alleged defaults under the first, second and third home loans. The notices are attached at annexures 1 to 3 of Mr Werner's affidavit. The notices stated they were given under both the relevant home loan and the mortgage. So, for example, the notice at annexure 1 states it is given under the first home loan and the mortgage.

Service of the notices of default

The plaintiff's solicitors caused the notices to be sent by registered post on 10 November 2022 to the PO Box number for the defendant that appears on the certificate of title for the Property. The notices of default were also affixed to the locked front gate of the Property on 7 December 2022.[21]
[21] Werner affidavit, pars 5 and 6, annexures 4, 5 and 6.
In respect of service pursuant to the mortgage, s 106(2) of the Transfer of Land 1893 (WA) sets out the prescribed methods of service. These include:
1.sending the notice by registered post to the address entered in the register as the address of the mortgagor;[22]
2.the notice being left in a conspicuous place on the mortgaged land.[23]
[22] Section 106(2)(b)(i).
[23] Section 106(2)(c).
The consumer credit contracts incorporated the plaintiff's usual terms and conditions for consumer mortgage lending.[24] Those terms provide that service of notices can be effected by post and they are taken to be received on the day such notices would be received in the ordinary course of post.[25]
[24] First Di Gregorio affidavit, annexure GG6.
[25] First Di Gregorio affidavit, page 39.
The mortgage also contained terms regarding service. These terms include that service can be effected by the relevant notice being sent by prepaid post to the address last notified by the defendant or given in any other way permitted by law.[26]
[26] Clause A24.2(c) and (e), first Di Gregorio affidavit, page 82.
The notices of default were returned to sender.[27] However, where notices are delivered in accordance with the applicable contractual or statutory regime, service is regarded as having been effected irrespective of whether the notice comes to the attention of the person to whom the notice is issued.[28]
[27] Werner affidavit, par 7.
[28] Secure Funding Pty Ltd v Anand [2023] WASC 441 [49].
The methods of service implemented by the plaintiff satisfied the requirement for service under the Transfer of Land Act, the relevant home loan and the mortgage.

Alleged overdue payments the subject of the notices of default

The particulars to par 17 of the statement of claim allege the following defaults:
1.failure to pay the amounts due under the first home loan between February 2021 and October 2022 in the amount of $15,573;
2.failure to pay the amounts due under the second home loan between February 2021 and October 2022 in the amount of $16,170; and
3.failure to pay the amounts due under the third home loan between February 2021 and July 2021 in the amount of $3,972.
The notices of default in respect of each home loan are annexed to Mr Werner's affidavit.
In respect of the first home loan, the notice of default states that the total amount overdue is $15,573. The notice of default set out that this amount is comprised of overdue payments totalling $3,828 for the period February to July 2021 and a further 15 overdue payments of $783 for the period 29 August 2021 to 28 October 2022.[29]
[29] Werner affidavit, page 10.
In respect of the second home loan, the notice of default states that the total amount overdue is $16,170. The notice of default set out that this amount is comprised of overdue payments totalling $4,620 for the period February to July 2021 and a further 15 overdue payments of $770 for the period 28 August 2021 to 28 October 2022.[30]
[30] Werner affidavit, page 19.
In respect of the third home loan, the notice of default states that the total amount overdue is $3,972. The notice of default set out that this amount is comprised of overdue payments totalling $897 for the period February to July 2021 and 15 overdue payments of $205 for the period 29 August 2021 to 28 October 2022.[31] This notice of default differs from par 17 of the statement of claim in that the period of default specified in the statement of claim ends in July 2021, while under the notice of default, it ends in October 2022. The quantum of the default is the same, being $3,972 and it would appear the reference to July 2021 in the statement of claim is a mistake.
[31] Werner affidavit, page 28.
Each notice of default demanded payment of the overdue payments by 9 January 2023.[32] Each notice of default also specified that if the payment demanded was not made, 'the entire amount required to pay out the [relevant loan] will become immediately due and payable'.[33] Each notice also specifies the payout figure for the relevant loan as at 1 November 2022.[34]
[32] Werner affidavit, pages 11, 20 and 29.
[33] Ibid.
[34] Werner affidavit, pages 13, 22 and 31.

Mr Di Gregorio's fourth affidavit summarised the position in respect of the overdue amounts based on his review of the bank's records.
In respect of the first home loan, Mr Di Gregorio said that for the period 12 February 2020 to 31 October 2022, the amounts in the notice of default were calculated as follows:[35]
1.the required monthly repayment amount had reduced to the sum of $783 per month from 28 July 2020;
2.from 28 July 2020 until 28 January 2021, monthly payments of $783 were made by direct debit from another of the defendant's accounts (the offset account), with a payment of $696 being made on 28 January 2021; and
3.scheduled transfers between 28 February 2021 and 28 October 2022 in the sum of $783 per month were dishonoured.
[35] Fourth Di Gregorio affidavit, par 7.
In respect of the second home loan, Mr Di Gregorio said:[36]
1.the required monthly repayment amount had reduced to the sum of $770 per month from 28 April 2020;
2.from 28 April 2020 up until 28 January 2021, monthly payments of $770 were made by direct debit from the offset account; and
3.scheduled transfers between 28 February 2021 and 28 October 2022 in the sum of $770 per month were dishonoured.
[36] Fourth Di Gregorio affidavit, par 9.
In respect of the third home loan, Mr Di Gregorio said:[37]
1.the monthly repayment amount reduced to the sum of $205 per month from 28 May 2020;
2.from 28 May 2020 up until 28 January 2021, monthly payments of $205 were made by direct debit from the offset account; and
3.scheduled transfers between 28 February 2021 and 28 October 2022 in the sum of $205 per month were dishonoured.
[37] Fourth Di Gregorio affidavit, par 11.
The amounts referred to in Mr Di Gregorio's fourth affidavit concerning the second home loan do accord with the bank statements that have been put into evidence. However, the amounts referred to in Mr Di Gregorio's fourth affidavit concerning the first and third home loans do not appear to accord with the bank statements that have been put into evidence.
In respect of the first home loan, Mr Di Gregorio says that the monthly repayment amount reduced to the sum of $783 per month from 28 July 2020. However, that is not what the bank statements that are annexed to his affidavit provide. So, for example, the bank statement for the period 5 August 2021 to 5 September 2021[38] states that the required repayments were $696 per month. This appears to be the case throughout the period of the alleged defaults. It would seem that there were elected debit repayments set up from the offset account for the sum of $783 per month which were dishonoured.[39] However, according to the statements, that was not the required monthly payment.
[38] Fourth Di Gregorio affidavit, page 24.
[39] Fourth Di Gregorio affidavit, page 25.

In respect of the third home loan, Mr Di Gregorio said that that the monthly repayment amount reduced to the sum of $205 per month from 28 May 2020. However, the bank statements attached to his affidavit show that the required repayments over the alleged default period were $189 per month.[40] This appears to be the case throughout the period of the alleged defaults. It would seem that there were automatic repayments set up from another account for the sum of $205 per month which were dishonoured.[41] However, according to the statements, that was not the required monthly payment.

Is the defendant in default and has the plaintiff made out a prima facie right to the relief sought

[40] Fourth Di Gregorio affidavit, page 201.

[41] See, for example, fourth Di Gregorio affidavit, page 202.

The defendant did not pay any moneys in response to the three notices of default.[42] As I have explained, the first set of notices of default for the first and third home loan overstated the amount of the overdue payments. This was not addressed at the hearing and only became apparent in the preparation of these reasons. I therefore invited the parties to provide further submissions on that issue which I received from both the plaintiff and the defendant.
[42] Third Di Gregorio affidavit, par 26.
The plaintiff accepts that the notices of default in respect of the first and third home loans overstated the amount outstanding. In respect of the first home loan, the amount demanded was higher than the aggregate of the unpaid required monthly repayments by a total of $1,305. In respect of the third home loan, the amount demanded was higher than the aggregate of the unpaid required monthly repayments by a total of $240.[43]
[43] Plaintiff's supplementary submissions, pars 20 and 24.
The plaintiff relies on the following observation of Mitchell J (as his Honour then was) in George 218 Pty Ltd v Bank of Queensland Ltd:[44]
… it is established that a notice of demand for payment of a debt is not invalid merely because it demands more than is due and, depending on the circumstances, may be valid even if it does not specify the amount due at all. (footnote omitted)
[44] George 218 Pty Ltd v Bank of Queensland Ltd [2015] WASC 434 [262]. See also Caratti v Zhou [2024] WASCA 39 [43].
His Honour cited the decision of the High Court in Bunbury Foods Pty Ltd v National Bank of Australasia Ltd[45] in support of this proposition.
[45] Bunbury Foods Pty Ltd v National Bank of Australasia Ltd (1984) 153 CLR 491, 503 - 504.
Further to these observations, the notice of default here was issued under s 88 of the National Credit Code 2014 (Cth), which did not apply in George 218 Pty Ltd.
Broadly speaking, s 88 precludes a credit provider from beginning enforcement proceedings against a debtor in relation to a credit contract and/or a mortgagor under mortgage unless the credit provider has given a default notice: s 88(1) and s 88(2). Section 88(3) sets out the requirements of a notice default, which include that the notice must specify the default: s 88(3)(a).
Section 180(1) of the National Credit Code provides, relevantly, that information disclosed in a notice is taken to be correctly disclosed if it is within tolerances allowed by the regulations. Regulation 106(4) provides that for s 180(1), information about repayments payable is within permissible tolerances if it overstates the amount or amounts payable.
Furthermore, the notices correctly identified the period of the default complained of and there is no question that the defendant failed to make the required monthly payments over that period.
I should note that there is authority to the effect that the overstatement of the amount repayable in a notice of default can invalidate the notice when the notice is given under the Credit Act that applied in New South Wales, Victoria, Queensland, Western Australia and the Australian Capital Territory.[46] However, the notices here were not given under the Credit Act (WA).
[46] See the authorities set out in [88.35] of Annotated National Credit Code 7^th ed, Andrea Beatty.
The defendant contends that my raising the overstatement issue with the parties reflects bias on my part toward the plaintiff. The issue came to my attention because I was scrutinising the plaintiff's case, bearing in mind that the defendant is self-represented. It is not ideal that the plaintiff's notices of default overstated the amounts repayable. It is also not ideal that the plaintiff did not appreciate the overstatement until it was brought to the plaintiff's attention. However, once the issue came to light, both parties were entitled to be heard on it. My raising of the issue accords fairness to all parties and does not, even arguably, constitute bias.
Accordingly, for these reasons, the notices of default for the first and third home loans were valid, even though they overstated the amount of the repayments outstanding.
Given the defendant did not make any payment in response to the notices, the plaintiff was entitled under the standard conditions to decide that the total amount owing under the relevant home loan was due and payable immediately, without giving further notice to the defendant. Further, the plaintiff was also entitled under the mortgage to decide that the total amount owing under the mortgage was due and payable immediately.[47]
[47] Standard conditions, cl 9.3(d), first Di Gregorio affidavit, page 36, mortgage, cl A22.5(a), first Di Gregorio affidavit, page 81.
The plaintiff issued notices of demand, demanding that the defendant pay the entirety of the amounts owing under the relevant home loans.[48] The notices were given under both the relevant home loan and the mortgage. The notices set out that if the defendant did not pay the amount demanded, the plaintiff may take possession of the Property. The notices were sent by registered post to the defendant's post office box recorded on the certificate of title and also left in a conspicuous place at the Property.[49] The notices reflect that the plaintiff had decided all of the moneys due and owing under the home loans were due and payable.
[48] Werner affidavit, annexures 7 ‑ 9.
[49] Werner affidavit, pars 10 - 12.
The defendant did not make payment of the moneys demanded by these further notices, or of any other amount.[50]
[50] Third Di Gregorio affidavit, par 26.
The mortgage provides in effect that where a notice of default has been given that specifies the default and the mortgagor (here, the defendant) does not fix the default in the time specified, then the plaintiff may take possession of the property.[51] Given that the defendant has not made any payments in response to the first and second set of notices, the plaintiff is entitled to take possession of the property.
[51] Mortgage, cl A22.5(b), first Di Gregorio affidavit, page 81.
Further, to the best of the plaintiff's knowledge, information and belief, the defendant is in possession of the Property.[52]
[52] Second Di Gregorio affidavit, par 9.
In respect of the question of costs, the mortgage provides that the defendant must pay the plaintiff's reasonable enforcement expenses reasonably incurred or spent in the plaintiff's exercise of its rights in relation to the default.[53] Similarly, the conditions applicable to the home loans provide that the borrower must pay the plaintiff any expenses the plaintiff reasonably incurs in enforcing its rights under the relevant home loan or the mortgage.[54]
[53] Mortgage, cl A22.8, first Di Gregorio affidavit, page 82.
[54] Standard conditions, cl 9.4, first Di Gregorio affidavit, page 36.

Analysis at this stage

Having regard to the matters set out at [26] - [70] above, the plaintiff has established that:
1.The home loan agreements were made by the plaintiff with the defendant.
2.The defendant's obligations under each of the home loan agreements were secured by the mortgage, which is registered against the certificate of title to the Property.
3.The defendant defaulted in making payment of the instalments due under the home loan agreements.
4.The plaintiff issued notices of default to the defendant under the respective home loans and the mortgage.

5.The notices of default were served in accordance with the terms of the home loan agreements, the mortgage, and the Transfer of Land Act.
6.The defendant did not pay any moneys in response to the notices of default and therefore did not remedy the default.
7.The plaintiff was therefore entitled to decide to demand payment of all moneys due and owing under each home loan.
8.The plaintiff issued notices of demand for payment of all moneys due and owing under the home loans. From this, I infer that the plaintiff decided to demand payment of all moneys due and owing.
9.The notices of demand were served in accordance with the requirements of the home loans, the mortgage and the Transfer of Land Act.
10.The defendant has not complied with the notices of demand and in particular, has not paid any moneys to the plaintiff in response to the notices.
11.The plaintiff is therefore entitled to judgment for the total amount due and owing under each home loan.
12.Further, pursuant to the terms of the mortgage, the plaintiff is entitled to possession of the Property.
13.The plaintiff is also entitled to its reasonable costs of the action and the application for summary judgment.

Accordingly, I am satisfied that the plaintiff has made out a prima facie case for summary judgment to be entered against the defendant for the outstanding amounts due under the home loans and for possession of the Property.
I turn now to the defendant's position. As I have said at [9] above, once the plaintiff has established a prima facie right to summary judgment, the defendant assumes an evidentiary burden to satisfy the court that there is an issue or question in dispute which ought to be tried, or that there ought for some other reason to be a trial. The overall legal burden of persuasion that summary judgment should be granted still remains with the plaintiff.

Matters raised by the defendant

The defendant filed vast amounts of material in opposition to the application. These include the 377 page document that I have referred to at [17] above and a further 98 page document. Broadly speaking, the structure of these documents, and the arguments they seek to present, are not coherent. They are of little assistance in assessing whether summary judgment ought to be entered.
It needs to be remembered that the court's role is to administer justice according to law.[55] The presiding judge is not required to scour through vast reams of material put on by a party to make sure that there is no arguable defence or other reason why summary judgment should not be granted. It is contrary to the administration of justice for court resources to be used in such a way.
[55] Re Magistrate M M Flynn; Exparte McJannett [2013] WASC 372 [15].
That being said, where a person such as the defendant has strong views as to their perceived (lack of) legal identity, and places distinct emphasis on those views, it is important to ensure a possible defence is not obscured. Accordingly, during oral argument I had the defendant specifically address his complaints with the plaintiff's case against him.[56] Further, separately to the matters raised by the defendant, I scrutinised the plaintiff's case to satisfy myself that the plaintiff was entitled to the relief it seeks. As I explain at [54] - [64] above, that scrutiny did reveal an error in the plaintiff's approach. However, that error is not fatal to the summary judgment application.
[56] See [86] - [89] of these reasons, which set out what the defendant said.
It appears that the principal matters relied on by the defendant in opposition to the plaintiff's application are as follows. First, that the Supreme Court of Western Australia is a fiction. Second, that a Supreme Court Judge should not have heard the summary judgment application. Third, that the procedures implemented by the court in managing the summary judgment application were not appropriate. Fourth, a variant of what has been described as the pseudo-legal straw man theory.[57]

The Supreme Court is a fiction

[57] Deputy Commissioner of Taxation v Casley [2017] WASC 161 [15].

It is sufficient to deal with this aspect of the defendant's submissions by referring to s 6(1) of the Supreme Court Act 1935 (WA). It provides:
The previously established court called the Supreme Court of Western Australia continues in existence for the State of Western Australia.
Section 6(1) acknowledges the existence of the Supreme Court of Western Australia and provides that the court continues in existence. Accordingly, the submission that the Supreme Court of Western Australia is a fiction is unarguable.

Whether the application should not have been heard by a judge of the court

The defendant submitted the summary judgment application should have been referred to an independent referee consented to by both parties, for trial by jury.[58] Pursuant to the rules of court I have set out at [20] - [21] above, the plaintiff was entitled to bring the application for summary judgment. The application, once brought, is to be heard in chambers in accordance with O 59. The Rules do not provide for the application to be heard before a jury or to be referred to a referee for disposition. Further, the defendant has not pointed to any arguable basis for the contention that the application should have been referred to arbitration, or to a hearing before a jury.

Whether the correct procedures were followed in the case management of the proceedings

[58] ts 117.

The defendant objected to the prior involvement of a registrar in the case management of the proceedings. In that respect, a registrar made orders for substituted service of the writ of summons and, separately, of a form 36A notice necessary for the plaintiff to apply for default judgment. A registrar also issued a direction for a case management conference to be held on 30 October 2023. The defendant submits that a registrar does not have jurisdiction in respect of the proceeding because it is a proceeding under the TLA: see O 60A r 2(d)(i). However, while the proceeding pertains to land registered under the TLA, it is not a proceeding under the TLA. That is, it is not a proceeding brought pursuant to a provision of the TLA. Rather, it is a mortgage proceeding brought under O 4AA.
In any event, the programming of the summary judgment application has been dealt with by a judge of the Supreme Court and I heard the application. Thus, a registrar of the court was not involved in the substantive disposition of the summary judgment application.
The defendant complains about the registrars not permitting him to file certain documents. However, irrespective of whether that is the case, the defendant emailed substantive material to my associates prior to the final hearing of the application. Further, I received the 377 page document and the 98 page document, which were the principal documents relied on by the defendant during his oral submissions. It should be kept in mind that a party to proceedings does not have an unqualified right to file as much material as they want.
The defendant also complains that the e-mail addresses the subject of the orders for substituted service were not his e-mail addresses. Irrespective of whether that is the case, the purpose of substituted service is to bring the Writ of Summons to the attention of the relevant defendant. That clearly happened, given a conditional appearance was subsequently filed.
Accordingly, the complaints regarding the procedures adopted in dealing with the summary judgment application do not provide any arguable basis for me to decline to order summary judgment.

Living man theory

During the hearing of the application, I said to the defendant: [59]
What I want you to do is to let me know if you have any submissions that are directed to the plaintiff's claim against you.
[59] ts 122.
In response, the submission was made that: [60]
Well, it's not my name. That's the whole fact. There was no disclosure, or full disclosure, at the start of the contract and that's why it is void [ab] initio.
…
There was no disclosure of the living man signing for a fictitious entity.
…
The fact is the full disclosure of the name has never come up, and I've only found out about this over the last couple of years. So the fraud was perpetrated a long time ago and now that I found out what it is I'm holding them to account.
[60] ts 122.
The defendant also submitted this constituted fraud and unconscionable conduct, and that the relevant contracts were made under a mistake of fact. [61]
[61] ts 114 and ts 128.
The defendant also submitted that:[62]
… the plaintiff has supplied no evidence supporting that the capital-lettered entity, Supreme Court of Western Australia, has any authority over or consent from the defendant, nor the living man, Glenn Desmond, acting in the capacity of executor of the named entity, Glenn Desmond Moir.
[62] ts 116.

In effect, the defendant seeks to construct a distinction between himself as a living person and his legal status or personality. That proposition has been routinely rejected by courts throughout Australia.[63] The defendant's propositions do not provide any arguable defence or any basis upon which summary judgment should not be granted.
[63] See Kelly v Fiander [2024] WASC 275, footnotes 6 - 11. See also Connell [24], Re Coles Supermarkets Australia Pty Ltd [2022] VSC 438 [17].
Also, the defendant's position does not sit consistently with his behaviour in respect of other properties owned by him. Mr Ralston's affidavit sets out that another of the defendant's properties was mortgaged to the plaintiff. In respect of that property, the defendant entered into a contract of sale, which he signed. Upon the sale being effected in accordance with that contract, the moneys owing to the plaintiff under the mortgage were paid out and the defendant received a surplus of $739,306.61.[64] By acting in that way, the defendant effectively acknowledged his legal status in his dealings with the plaintiff. The defendant cannot pick and choose when he is regarded as a legal person.

Additional matters

[64] Ralston affidavit, pars 11 - 13 and the attachments referred to at those paragraphs.

The defendant also complained that the plaintiff did not provide him with 'wet-ink signed contracts'.[65] The defendant's submission that '[t]here was no disclosure of the living man signing for a fictitious entity' ([87] above), implicitly accepts that he signed the relevant documents relied on by the plaintiff. Furthermore, as I have said at [28] above, Mr Di Gregorio in his affidavit that attached those documents described them as 'true copies'. That is sufficient for the documents to be received into evidence.[66]
[65] Tabled points of pertinacity and intransigence in support of the "Defendant's" challenge to the "Plaintiff's" application for summary judgment, pars 153 and 154.
[66] Connell [24].
The defendant also sought to have the transcripts amended because they referred to the person attending as 'Mr Moir'. As I have explained at [90] above, the courts do not accept the proposition that there is a delineation between a living person and their legal status or personality. That being so, the designation in the transcript is correct.
During the course of the final hearing, it became apparent that there were previous proceedings on foot regarding the home loans, being CIV 1700 of 2022. These proceedings were discontinued without ever being served. Pursuant to O 23 r 2 of the Rules, such discontinuance is not a defence to any subsequent action. Specifically, such discontinuance does not provide an arguable defence to the claims made by the plaintiff in these proceedings.

Conclusion

The matters raised in opposition to the summary judgment application do not provide an arguable defence to the plaintiff's claims, nor do they provide any other basis that justifies a refusal to grant summary judgment.
The plaintiff has demonstrated it is entitled to summary judgment substantially in accordance with its summons, in particular as I have set out at [71(11)] - [71(13)] above. Given that is the case, the plaintiff should be granted leave to bring the application for summary judgment out of time. In that respect, I also take into account that the delay was only for a period of a few days.
The plaintiff's summons also sought waiver of the requirement for conferral between the parties. In my view, given the nature of the matters raised in opposition to the application, conferral would have been futile. It is therefore appropriate that the requirement for conferral be waived.
I will hear from the parties as to the precise form of the orders to be made having regard to these reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OM
Associate to the Hon Justice Lemonis
18 SEPTEMBER 2024