Farrant v Westpac Banking Corporation - [2024] WASCA 157

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   FARRANT -v- WESTPAC BANKING CORPORATION [2024] WASCA 157
CORAM:   MITCHELL JA
VAUGHAN JA

HEARD:   13 DECEMBER 2024
DELIVERED          :   13 DECEMBER 2024
PUBLISHED           :   13 DECEMBER 2024
FILE NO/S:   CACV 50 of 2024
BETWEEN:   MEHRZAD FARRANT
Appellant
AND
WESTPAC BANKING CORPORATION
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   ACTING MASTER MCDONALD
Citation: WESTPAC BANKING CORPORATION -v- FARRANT [2024] WASC 300
File Number            :   CIV 1316 of 2023
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   ACTING MASTER MCDONALD
Citation: WESTPAC BANKING CORPORATION -v- FARRANT [2024] WASC 300 (S)
File Number            :   CIV 1316 of 2023

Catchwords:

Appeal - Practice and procedure - Whether appeal should be dismissed if no grounds have reasonable prospect of success - Default in mortgage - Where mortgagor alleges mortgage invalid as not properly executed - Where master alleged to lack jurisdiction - Turns on its own facts - Appeal dismissed

Legislation:

National Credit Code, s 53(2)
Supreme Court (Court of Appeal) Rules 2005 (WAS), r 43(2)(g)(i)
Transfer of Land Act 1893 (WA), s 130

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	C M Guy

Solicitors:

Appellant	:	In person
Respondent	:	TG Legal & Technology

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

In de Braekt v Legal Profession Complaints Committee [2016] WASC 220
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Westpac Banking Corporation v Farrant [2024] WASC 300
Westpac Banking Corporation v Farrant [2024] WASC 300 (S)

REASONS OF THE COURT:

Overview

This matter came before the court on 13 December 2024 pursuant to a Registrar's Notice to Attend dated 15 October 2024. The notice raised for consideration:
1.Whether the court should strike out any ground of appeal.
2.Whether the appeal should be dismissed on the basis that none of the grounds of appeal has a reasonable prospect of succeeding.
After hearing from the appellant, and considering the appellant's case, we were satisfied that the appeal should be dismissed. We made orders accordingly and said that we would provide written reasons for those orders as soon as practicable. These are our reasons for the orders made dismissing the appeal.

Background

By a writ of summons dated 30 March 2023 the respondent bank commenced mortgage recovery proceedings against the appellant. The respondent sought delivery up of vacant possession of a property owned by the appellant in Ednah Street, Como. The respondent claimed that, by a mortgage registered on 19 July 2011, the appellant mortgaged the property as security for the repayment of two loans. The first loan was pleaded to have originally been in an amount of $217,000 pursuant to a written agreement dated 29 June 2011. The second loan was pleaded to have originally been in an amount of $218,000 pursuant to a further written agreement dated 29 June 2011. The loan agreements were varied in 2015 and 2020. Defaults…

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: [2024] WASCA 157
Decision Date: 13 DECEMBER 2024

CaseChat Overview and Summary

The case of Farrant v Westpac Banking Corporation involved a dispute concerning a default in a mortgage agreement. The plaintiff, Farrant, claimed that the mortgage was invalid due to an alleged failure to properly execute it. The defendant, Westpac Banking Corporation, sought summary judgment, claiming that the mortgage was validly executed by Farrant and that she had defaulted under the terms of the loan agreements. The matter was heard in the Supreme Court of Western Australia. The court was required to determine whether the mortgage was validly executed and whether there was a default under the mortgage.

The court found that the plaintiff's argument that the mortgage was invalid due to the absence of the bank's common seal was without merit. The court held that the execution of the mortgage by the plaintiff was sufficient for the mortgage to be valid, and that the absence of the bank's common seal did not impact the validity or enforceability of the mortgage. The court further held that the plaintiff had defaulted under the terms of the loan agreements. The court dismissed the plaintiff's appeal, finding that the grounds of appeal had no reasonable prospect of success.

The court's reasoning was based on the evidence presented and the applicable legal principles. The court found that the plaintiff's argument was based on a misapprehension of the law and that the mortgage was validly executed by the plaintiff. The court further found that the plaintiff had defaulted under the terms of the loan agreements. The court held that the grounds of appeal had no reasonable prospect of success and dismissed the appeal. The court's decision was based on a careful consideration of the evidence and the applicable law.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

There is no need to rehearse the entirety of the master's careful and considered reasons for decision. The master summarised the materials before her [1] ‑ [10] and the pleaded claim dealing, where appropriate, with the documentary evidence relied on by the respondent bank [13] ‑ [48]. The master was conscious of the appellant's status as a self‑represented litigant and the flexibility that should be afforded to the appellant as a self-represented litigant [11]. The master then dealt, in the following order, with the appellant's stay application [49] ‑ [81], the appellant's summary judgment application [82] ‑ [100] and the respondent's summary judgment application [101] ‑ [114]. In supplementary reasons the master explained that, by parity of reasoning from the earlier reasons, the appellant's counterclaim was doomed to fail and should be dismissed: Westpac Banking Corporation v Farrant (S).[4][4] Westpac Banking Corporation v Farrant [2024] WASC 300 (S) [12]. The master held that the pleaded case advanced by the respondent bank was duly verified by its affidavit evidence [109]. In that respect the transaction histories were not disputed; nor did the appellant deny receipt of the funds advanced under the loan agreements [106]. There was also prima facie evidence of the defaults under the loan agreements and the mortgage [112]. In connection with each of the stay application, the O 16 application and the O 14 application the appellant relied on the absence of any affixation of respondent bank's common seal to the mortgage. The appellant referred to each of s 130 of the Transfer of Land Act 1893 (WA), s 127 of the Corporations Act 2001 (Cth), s 9 and s 10 of the Property Law Act 1969 (WA) and s 53 of the National Credit Code. The argument, in substance, was that so far as those provisions provided for how a corporation may legally execute a mortgage, a document or a deed, the absence of the affixation of the respondent's common seal to the mortgage meant that the mortgage was void, unenforceable and not legally binding. The master held that the appellant's contention proceeded on a misapprehension that the respondent bank was obliged to execute the mortgage [67]. The master held, contrary to the appellant's contention, that the respondent was not required to execute the mortgage [70] ‑ [71], [73], [77]. It was enough that the mortgage was validly executed by the appellant, as mortgagor, and registered against the title of the property [70] ‑ [71]. In that respect the appellant accepted that she entered into the mortgage and thereby mortgaged the property as security for the $435,000 advanced under the two loans [107] ‑ [108]. In any event, the master reasoned that: s 130 of the Transfer of Land Act was facilitative not mandatory [72]; it was unclear how any failure to meet the requirements of s 127 of the Corporations Act impacted the validity or enforceability of the mortgage [74]; and the requirements of s 9 and s 10 of the Property Law Act did not have application to the respondent [77]. Moreover, the allegation based on s 53 of the National Credit Code fell away so far as it was premised on the asserted failure to lawfully execute the mortgage by reference to the requirements of s 130 of the Transfer of Land Act, s 127 of the Corporations Act or s 9 and s 10 of the Property Law Act [80].