Commonwealth Bank of Australia v Sayed
[2021] WASC 79
•26 MARCH 2021
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: COMMONWEALTH BANK OF AUSTRALIA -v- SAYED [2021] WASC 79
CORAM: ACTING MASTER STRK
HEARD: 23 MARCH 2021
DELIVERED : 23 MARCH 2021
PUBLISHED : 26 MARCH 2021
FILE NO/S: CIV 3128 of 2019
BETWEEN: COMMONWEALTH BANK OF AUSTRALIA
Plaintiff
AND
SHARJEEL ABDUL RAOOF SAYED
Defendant
Catchwords:
Summary judgment - Application for monetary judgment and possession of a property - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA)
Result:
Judgment granted
Category: B
Representation:
Counsel:
| Plaintiff | : | TE Strack |
| Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Dentons Australia |
| Defendant | : | No appearance |
Case(s) referred to in decision(s):
Nil
ACTING MASTER STRK:
In the Master's List on 23 March 2021, the plaintiff moved for judgment to be entered against the defendant pursuant to the Rules of the Supreme Court 1971 (WA) (RSC) O 14 r 3. There was no appearance by the defendant at the hearing.
Having read the papers filed on behalf of the plaintiff and after hearing counsel for the plaintiff, I entered judgment. I indicated that I would publish reasons for that decision. These are my reasons.
The plaintiff's claim - overview
This proceeding was commenced by the plaintiff by a writ of summons filed on 13 December 2019 with a statement of claim. The plaintiff's claim relates to a loan agreement and mortgage which the plaintiff says secures the same.
The plaintiff pleads that the defendant is the registered proprietor of the land situated at Unit 7, 61 Second Avenue, Mount Lawley in the State of Western Australia (the Property).
The plaintiff pleads that a loan agreement was entered into by the plaintiff and the defendant on or about 23 July 2015 (Loan Agreement), and pursuant to that Loan Agreement:
(a)the defendant borrowed the sum of $400,607.72 (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 registered on the title of the Property on 24 August 2015 and bearing number N100182 (Mortgage); and
(c)on or about 24 August 2015, the plaintiff advanced the Loan Amount to the defendant.
The plaintiff pleads that the defendant defaulted in making payment required under the Loan Agreement and on 1 May 2018, a default notice was issued to the defendant. The plaintiff also claims that the defendant failed to pay the arrears as required by the default notice and consequently the entire amount owing under the Loan Agreement became due and payable under the terms of the Loan Agreement and the Mortgage. Despite having made demand by letter dated 28 November 2018, the plaintiff pleads that the defendant failed to comply with the demand and consequently, the whole of the amount owing pursuant to the Loan Agreement became and is due and payable; and the plaintiff is entitled to possession of the Property.
Procedural history - overview
As noted above, this proceeding was commenced by the plaintiff on 13 December 2019. A memorandum of appearance was filed on behalf of the defendant on 14 February 2020. The defendant appears in person.
By a chamber summons filed on 26 March 2020, the plaintiff sought leave to apply for summary judgment as against the defendant. On the same day, the plaintiff also filed a memorandum of conferral pursuant to the RSC O 59 r 9, together with the following affidavits in support of the application for summary judgment:
(a)the affidavit of Steven Edwards, Senior Manager Recoveries, an officer of the plaintiff;
(b)the affidavit of Beverley Irene Steadman, a legal administrative assistant employed by the firm representing the plaintiff in this proceeding (Dentons), deposing to service of a notice of default on the defendant dated 18 May 2018;
(c)the affidavit of Courtney Jayne Manzoney, a paralegal employed by Dentons, deposing to the service of a letter of demand on the defendant dated 28 November 2018; and
(d)the affidavit of Tamara Elise Strack, a solicitor employed by Dentons, deposing to the communications as between the plaintiff and the defendant between 14 February 2020 (when the defendant filed an appearance) and 26 March 2020.
On 15 April 2020, a further affidavit of Ms Manzoney was filed by which she deposed to having served on the defendant the plaintiff's application for summary judgment; the notice of listing; and the documents filed in support of the application. A further affidavit of Ms Strack was also filed on 15 April 2020 by which she deposed to the communications as between the plaintiff and the defendant between 2 and 14 April 2020.
On the first return of the plaintiff's application on 16 April 2020, the Master ordered that the defendant file and serve any affidavits in opposition to the plaintiff's application for summary judgment by 11 May 2020 and adjourned the application to 14 May 2020. No affidavits were filed by the defendant in opposition to the application.
On 12 May 2020, the court was informed by the plaintiff's representatives that the defendant had made a complaint to the Australian Financial Complaints Authority. On 13 May 2020, the plaintiff's representatives informed the court that the plaintiff had received formal notification of the complaint and, in accordance with Australian Financial Complaints Authority guidelines, the plaintiff sought to adjourn the application for summary judgment sine die pending the resolution or closure of the complaint. An order adjourning the plaintiff's application for summary judgment sine die was made on 14 May 2020.
On 15 February 2021, the plaintiff's representatives informed the court that the defendant's complaint had been closed and requested the relisting of the plaintiff's application. The application was relisted before the Master on 2 March 2021. There was no appearance by the defendant on that occasion and the application did not proceed to be determined. An order was made allowing the defendant until 16 March 2021 to file and serve any affidavit in response to the application, which was otherwise adjourned to 23 March 2021.
A third affidavit of Ms Strack was filed on 22 March 2021, by which she deposed to having sent notice of the orders of 2 March 2021 to the defendant by email and by express post sent to the Property.
A third affidavit of Ms Manzoney was also filed on 22 March 2021, by which she deposed to having access to the plaintiff's records in relation to the accounts of the defendant as an agent of the plaintiff. Ms Manzoney deposes to having reviewed those records and to her belief that as at 23 March 2021, in relation to the Loan Agreement:
(a)the amount of principal and interest in arrears was $82,344.26;
(b)the total amount outstanding was $462,204.86; and
(c)the amount outstanding increases with interest at a daily rate of $68.37.
No affidavit was filed by the defendant in opposition to the summary judgment application. As noted above, the defendant did not appear on 23 March 2021 and counsel for the plaintiff moved that judgment to be entered.
Leave
The plaintiff requires leave to enter summary judgment. It is well understood that the 21 day limit for an application for summary judgment reflects the policy view that such application should be brought at an early stage of proceedings. If there is a delay, it must be explained, and it is up to the applicant to show the delay in bringing the application is justifiable in all of the circumstances.
The first affidavit of Ms Strack explains the various communications as between the plaintiff and the defendant between 14 February 2020 (when the defendant filed an appearance) and 26 March 2020. I find on the evidence before me that the delay in making an application for summary judgment was justifiable in the circumstances as deposed to by Ms Strack.
Prima facie case established
From the affidavits filed on behalf of the plaintiff, I am satisfied that the plaintiff's claim is a good one and that the affidavits do verify the essential elements of the cause of action upon which the application for summary judgment is based.
Once the plaintiff has established a prima facie case, the evidentiary onus shifts to the defendant to demonstrate that there is an arguable defence or other reason for trial.
The power to order summary judgment must be exercised with great care and will not be exercised unless it is clear that there is no real question to be tried, or any issue which requires investigation. The defendant has been afforded a number of opportunities to demonstrate that there is an arguable defence or other reason for trial. The defendant did not file any affidavit nor did he seek to advance any submission in opposition to the application. On the evidence before me, I find that there is no real question to be tried nor any issue which requires investigation.
Conclusion and orders
I am satisfied that the plaintiff is entitled to leave and judgment. I have made orders in the following terms:
1.The Plaintiff have leave to bring an application for summary judgment.
2.The Defendant pay to the Plaintiff the sum of $462,204.86 plus interest at the rate specified in the Loan Agreement and the Mortgage from the date of this Judgment until payment.
3.Within 28 days of the date of judgment the Defendant give possession to the Plaintiff of all that piece of land situated at Unit 7, 61 Second Avenue, Mount Lawley in the State of Western Australia more particularly described as:
Lot 7 on Strata Plan 3937 and being the whole of the land comprised in Certificate of Title volume 1438 folio 807.
4.The Defendant pay the Plaintiff's costs of the action including the costs of the Application for summary judgment to be taxed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to Master Sanderson
26 MARCH 2021
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