Exchequer Australia Pty Ltd v Leopardi - [2021] WASC 340

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   EXCHEQUER AUSTRALIA PTY LTD -v- LEOPARDI [2021] WASC 340
CORAM:   ALLANSON J
HEARD:   12 AUGUST 2021 AND FURTHER SUBMISSIONS RECEIVED 19 AUGUST 2021
DELIVERED          :   6 OCTOBER 2021
FILE NO/S:   CIV 1060 of 2021
BETWEEN:   EXCHEQUER AUSTRALIA PTY LTD
Plaintiff

AND

KRYSTEN LEOPARDI
First Defendant

DAPHNE GALE LEOPARDI
Second Defendant

Catchwords:

Practice and procedure - Plaintiff's summary judgment - Whether arguable defence or for some other reason there ought be trial of the claim - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Summary judgment application refused
First defendant given leave to file defence

Category: B

Representation:

Counsel:

Plaintiff	:	G J Douglas
First Defendant	:	C V Eastwood
Second Defendant	:	No Appearance

Solicitors:

Plaintiff	:	Douglas Cheveralls Lawyers
First Defendant	:	Eastwood Law
Second Defendant	:	Earnshaw & Associates Lawyers

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

Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
HSBC Bank Australia Ltd v Mavaddat [2015] WASC 153
Miles v Bull [1969] 1 QB 258
Wedge v Service Finance Corp Ltd [2002] WASCA 54

ALLANSON J:

Introduction

The plaintiff, Exchequer Australia Pty Ltd, is the Mortgagee under a registered Mortgage over a property at Gidgegannup.
The defendants, Krysten Sara Leopardi and Daphne Gale Leopardi, are the registered proprietors of the land as tenants in common in equal shares.
By writ filed on 4 February 2021, the plaintiff claimed for money due and payable by the defendants and for the defendants to give the plaintiff vacant possession of the Gidgegannup property. The amount then claimed was $34,750.76.
On 11 March 2021, the plaintiff applied for summary judgment.
Between 25 March 2021 and 29 March 2021, the first defendant paid a total of $23,181.96 in five instalments.
On the plaintiff's calculation, with accumulated interest and legal fees, the defendants still owe between $41,241.83 and $44,694.09.[1]
[1] Counsel for the plaintiff handed up a schedule during the hearing calculating the amount due with reference to an interest rate of 6%, pursuant to s 32 of the Supreme Court Act 1935 (WA), and 8%, the standard rate payable under the Mortgage. The figures here reflect these two rates.
In the following reasons I will refer to the first defendant as Ms Leopardi. The second defendant, who appears in these proceedings by her guardians ad litem, does not oppose the relief sought and did not wish to be heard on the application for summary judgment.

Summary judgment

A plaintiff may apply to the court under O 14 of the Supreme Court Rules 1971 (WA) for summary judgment on the ground that the defendant has no defence to a claim included in the writ.
On hearing the application 'unless the Court dismisses the application, or the defendant satisfies the Court with respect to the claim, or the part of the claim, to which the application relates that there is an issue or question in dispute which ought to be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] WASC 340
Decision Date

CaseChat Overview and Summary

Exchequer Australia Pty Ltd sought summary judgment against Krysten Sara Leopardi for money due and payable under a Mortgage over a property at Gidgegannup. Exchequer claimed that the defendants owed between $41,241.83 and $44,694.09, depending on the rate of interest applied. Ms Leopardi opposed the application for summary judgment on the basis that there was a triable issue as to whether she was obliged to pay interest on the Mortgage, and whether there had been an estoppel by Mr Thorpe (a director of Exchequer) against Exchequer enforcing interest. The court considered whether there was an arguable defence or another reason for the claim to be tried. The court held that the application for summary judgment should be refused because there was a triable issue as to whether Ms Leopardi was obliged to pay interest under the Mortgage. The circumstances of the relationship between Ms Leopardi and Mr Thorpe, and the assistance he provided to her, raised potential issues, including unconscionability, which required investigation.

Orders