Commonwealth Bank of Australia v Mumford
[2016] WASC 293
•15 SEPTEMBER 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: COMMONWEALTH BANK OF AUSTRALIA -v- MUMFORD [2016] WASC 293
CORAM: ACTING MASTER STRK
HEARD: 12 SEPTEMBER 2016
DELIVERED : 12 SEPTEMBER 2016
PUBLISHED : 15 SEPTEMBER 2016
FILE NO/S: CIV 1703 of 2016
BETWEEN: COMMONWEALTH BANK OF AUSTRALIA
Plaintiff
AND
PELLE THOMAS MUMFORD
Defendant
Catchwords:
Summary judgment - Application for monetary judgment and possession of a property - Turns on own facts
Legislation:
Nil
Result:
Judgment granted
Category: B
Representation:
Counsel:
Plaintiff: Mr B C Smith
Defendant: No appearance
Solicitors:
Plaintiff: Gadens Lawyers
Defendant: No appearance
Case(s) referred to in judgment(s):
Nil
ACTING MASTER STRK: By chamber summons filed on 15 June 2016 the plaintiff sought summary judgment in this matter. The matter was programmed and listed for hearing on 12 September 2016. The defendant did not appear at the hearing of the summary judgment application.
After having read the papers filed by the parties and hearing counsel for the plaintiff, I entered judgment in favour of the plaintiff. I indicated that I would publish reasons for that decision. These are my reasons.
The proceedings - overview
On 29 April 2016, a writ of summons was filed by the plaintiff. In short, by these proceedings the plaintiff seeks judgment of a monetary amount and possession of a property owned by the defendant which had been offered as security for certain borrowings. The secured property is land situated in the State of Western Australia more particularly described as Lot 148 on Strata 63196 and being the whole of the land comprised in Certificate of Title vol 2846 folio 448 (the Property). While the Property is situated in Western Australia, the defendant resides in South Australia.
On 18 May 2016, a memorandum of conditional appearance was filed by the defendant. However, no application to the court was made by the defendant to have the question raised by his conditional appearance decided. As no application was made within 14 days from entry of the conditional appearance, the conditional appearance became and operated as an unconditional appearance of the defendant by operation of O 12 r 6(2) of the Rules of the Supreme Court 1971 (WA).
The chamber summons was listed before a registrar on 27 June 2016 and directions were made programming the plaintiff's application for summary judgment, including orders for the filing of submissions, responsive affidavits and responsive submissions. The defendant appeared in person on 27 June 2016.
By 12 September 2016, a number of affidavits had been filed on behalf of the plaintiff, together with the plaintiff's outline of written submissions for summary judgment. The defendant had also filed the following documents opposing summary judgment:
•on 29 July 2016, a document titled 'Affidavit of: The Occupant of the Office of the Executor for the Pelle Thomas Mumford, Estate sworn on 27/07/2016';
•on 29 July 2016, a document titled 'Affidavit of: The Occupant of the Executor for the Pelle Thomas Mumford, Estate sworn on 27/07/2016 and attachment PTME1 ‑ PTME4'; and
•on 5 September 2016, a document titled 'Responsive submission of: The Occupant of the Office of the Executor for the Pelle Thomas Mumford, Estate' dated 30 August 2016.
The defendant is self‑represented and although he had filed the documents referred to above, he did not appear at the hearing of the summary judgment application.
Summary of facts
The summary of facts which follows is taken from the statement of claim and the affidavits filed on behalf of the plaintiff.
On or about 8 July 2014, the plaintiff and the defendant entered into a written agreement which was comprised of:
•the Consumer Credit Contract Schedule; and
•the Usual Terms and Conditions for Consumer Mortgage Lending at s 2 of the booklet titled 'Consumer Mortgage Lending Products Terms and Conditions',
(together the Loan Agreement).
Pursuant to the Loan Agreement:
(a)the defendant borrowed the sum of $516,051.00 (the Loan Amount) from the plaintiff and agreed to repay the Loan Amount to the plaintiff in accordance with the terms and conditions of the Loan Agreement;
(b)the defendant secured repayment of all money payable under the Loan Agreement by a first registered mortgage over the Property in favour of the plaintiff, which mortgage was registered on the titled of the Property on 30 July 2014 and bearing number M720666 (the Mortgage); and
(c)on or about 30 July 2014 the plaintiff advanced the Loan Amount to the defendant.
The Mortgage incorporated by reference the terms contained in the Memorandum of Common Provisions registered number L654804 (Memorandum of Provisions). The Memorandum of Provisions states that:
(a)the defendant would be in default if the defendant did not pay any of the amount owing under the Loan Agreement when it was due;
(b)if the defendant was in default the plaintiff may issue the defendant with a notice specifying the default and providing a time within which the default may be rectified; and
(c)if a default is not rectified within the time specified in the notice the whole of the amount due under the Loan Agreement and the Mortgage would become immediately due and payable and the plaintiff may sue the defendant for the amount owing and take possession of the Property.
As at 15 December 2015, the defendant had failed to pay the sum of $18,596.00 to the plaintiff when it was due and by that failure the defendant was in default under the Loan Agreement and the Mortgage.
By a notice of default dated 15 December 2015, the plaintiff gave notice to the defendant under the Loan Agreement and the Mortgage that the defendant was in default of the terms of the Loan Agreement and the Mortgage. The defendant was informed that in order to rectify the default, he had to pay the arrears as at 18 December 2015 and the sum of $333.13 by way of enforcement expenses by no later than 21 January 2016. He was also informed that if the default was not rectified within the time specified in the notice (that was, by 21 January 2016), then among other things:
(a)pursuant to the terms of the Loan Agreement, the whole of the amount required to pay out the Loan Agreement would become immediately due and payable; and
(b)the plaintiff may commence enforcement proceedings in relation to the default.
The default was not rectified.
Judgment for the plaintiff
The defendant did not appear at the hearing of the summary judgment application. From the affidavits filed by the plaintiff, I was satisfied that the plaintiff's claim is a good one, and there is no defence to it. From the documents filed by the defendant in opposition to summary judgment, there were no matters raised which, when properly considered, raised triable issues so that summary judgment should not be entered.
In all of the circumstances then, I was satisfied that the defendant had no defence to this claim and that the plaintiff was entitled to judgment. I made orders accordingly.
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