Jackson v National Australia Bank Limited - [2025] WASCA 80

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   JACKSON -v- NATIONAL AUSTRALIA BANK LIMITED [2025] WASCA 80
CORAM:   MITCHELL JA
VAUGHAN JA

HEARD:   23 MAY 2025
DELIVERED          :   23 MAY 2025
PUBLISHED           :   26 MAY 2025
FILE NO/S:   CACV 11 of 2025
BETWEEN:   KEITH EDWARD STANSMORE JACKSON
First Appellant
DONALD MERVYN JACKSON
Second Appellant
HUGH FRANCIS JACKSON
Third Appellant
THE ESTATE OF GARRY JAMES JACKSON
Fourth Appellant
SANDRA GAIL JACKSON
Fifth Appellant
SHERRIL ANNE JACKSON
Sixth Appellant
AND
NATIONAL AUSTRALIA BANK LIMITED
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   MASTER RUSSELL
Citation: NATIONAL AUSTRALIA BANK LIMITED -v- JACKSON [2025] WASC 8
File Number            :   CIV 2150 of 2023

Catchwords:

Appeals - Mortgage recovery action - Appeal from summary judgment - Whether appeal should be dismissed on basis of none of the grounds having a reasonable prospect of succeeding - Turns on own facts

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(f), r 43(2)(g)(i)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

First Appellant	:	In person
Second Appellant	:	No appearance
Third Appellant	:	No appearance
Fourth Appellant	:	No appearance
Fifth Appellant	:	In person
Sixth Appellant	:	No appearance
Respondent	:	R R Joseph

Solicitors:

First Appellant	:	In person
Second Appellant	:	In person
Third Appellant	:	In person
Fourth Appellant	:	In person
Fifth Appellant	:	In person
Sixth Appellant	:	In person
Respondent	:	Norton Rose Fulbright Australia

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

Farrant v Westpac Banking Corporation [2024] WASCA 157
In de Braekt v Legal Profession Complaints Committee [2016] WASCA 220
National Australia Bank Limited v Jackson [2025] WASC 8
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

REASONS OF THE COURT:

Overview

This matter came before the court on 23 May 2025 pursuant to a Registrar's Notice to Attend dated 15 April 2025. 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 spokesperson for the appellants, and considering the appellant's case, we were satisfied that the appeal should be dismissed pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA). 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

The appellants traded together as Jackson Bros.[1] Three of the appellants - the first, second and third appellants - were at all material times the registered proprietors of a Property. The Property is comprised of that land being lot 8669 on deposited plan 201627 (the whole of the land described in certificate of title volume 1986 folio 76) and lot 8678 on deposited plan 201627 (the whole of the land described in certificate of title volume 1986 folio 78). The respondent bank provided facilities and loaned money to Jackson Bros from time to time.
[1] These reasons adopt the defined terms and abbreviations in the primary reasons.
By a writ of summons dated 9 October 2023 the respondent bank commenced recovery proceedings against the appellants.
The respondent sought payment of an amount allegedly owing pursuant to a Letter of Offer (said to be an amount of $803,523.45 as at 4 October 2023) and delivery up of vacant possession of the Property. The respondent claimed that, by the Letter of Offer, the respondent made two Facilities available to the appellants - an Overdraft with a facility limit of $100,000 and a Business Loan with a facility limit of $675,000 (later increased to $774,000). After various extensions the Facilities were repayable on 28 February 2022. The respondent further claimed that repayment of the loans pursuant to the Letter of Offer was secured by a Mortgage dated 5 February 1990 (being Mortgage E313667) which encumbered the Property.
Defaults were alleged to have occurred in February 2022 and March 2023 as a result of which the respondent bank claimed to be entitled to possession of the Property.
The respondent bank brought an application for summary judgment pursuant to O 14 of the Rules of the Supreme Court 1971 (WA) (RSC) by chamber summons filed 16 November 2023. The application was supported by an affidavit of Jeffrey Pontifex affirmed 16 November 2023 and the affidavits of Nicholas White sworn 7 March 2024 and 3 April 2024. Mr Pontifex is an officer of the respondent bank. Mr White is a solicitor employed by the respondent's solicitors.
There was some doubt about whether the summary judgment application was brought within the 21‑day period allowed under O 14 r 1(1) RSC. To deal with the possibility that the application was out of time the chamber summons dated 16 November 2023 sought leave to apply.
The appellants filed a defence on 10 November 2023 and subsequently, on 4 December 2023, filed a defence and counterclaim in substitution of the original defence. On 19 December 2023 the respondent filed a further chamber summons. This sought summary judgment, pursuant to O 16 RSC, in respect of the counterclaim. In the alternative the respondent sought orders striking out the counterclaim pursuant to O 20 r 19 RSC. The defendant's summary judgment application was supported by an affidavit of Mr Pontifex affirmed 18 December 2023.
In opposing the respondent bank's applications, the appellants relied on an affidavit sworn by the first appellant on 22 February 2024. The appellants were also permitted to adduce certain documentary evidence at the hearing of the applications. It is not necessary to set out all that was deposed to in the first appellant's affidavit. However, given the grounds of appeal, it should be observed that the first appellant did depose as follows at par 13:
I say that Mortgage E313667, being annexure JDP6 at pages 67 to 70 is not a true copy of the Mortgage E313667 on file at Landgate, Annexed hereto and marked 'KESJ3'. There are material differences between both documents.
Annexure 'KESJ‑3' is a four‑page document appearing at pages 62 ‑ 65 of the first appellant's affidavit. It is apparent from the imprint to the document that it is a search obtained on 27 February 2023 from the records maintained by the Registrar of Titles pertaining to Mortgage E313667. Annexure 'JDP‑6' is an annexure to Mr Pontifex's affidavit affirmed 16 November 2023 appearing at pages 66 ‑ 70 of that affidavit. This appears to be a reproduction of the respondent's own documentary record of Mortgage E313667 obtained by the respondent on 18 October 2019 through a third‑party records and information manager known as ZircoDATA. By visual comparison of the two documents it is obvious that the copy document at annexure 'JDP‑6' is the same as the copy document at annexure 'KESJ‑3' but for (1) different imprints indicating the provenance of the documents; and (2) stamp duty 'upstamping' and certain other notations on the document at 'JDP‑6'. We will say more about these notations when we deal with grounds 3 and 4.
The respondent bank's applications were heard by Master Russell on 11 and 30 April 2024. Judgment was reserved. The master handed down written reasons for decision on 14 January 2025: National Australia Bank Limited v Jackson.[2] In summary the master held:
1.The O 14 RSC application for summary judgment was filed within 21 days after compliant memorandum of appearances were filed. However, for the avoidance of doubt, the respondent should have leave to bring the application in any event [63] ‑ [64], [148](a).
2.The respondent had complied with the procedural requirements for the O 14 RSC application. So too the essential elements of the respondent's cause of action had been verified. There was a prima facie case that the respondent was entitled to recover the amount due and owing under the Facilities and the order sought for possession of the Property [67] ‑ [69], [148](b).
3.The matters raised by the appellants did not give rise to an arguable defence or a triable issue. Nor was there any other reason why there should be a trial of the action [71] ‑ [95], [148](c). (We will come back to the matters raised by the appellants in this respect so far as they are relevant in dealing with the grounds of appeal.) So too the matters raised by the appellants, by way of counterclaim, did not give rise to a viable defence. The position could not be improved with any amendment. Nor did the evidence adduced reveal facts which, if properly pleaded, could form an arguable defence to the respondent's claim [134] ‑ [147].
4.It was a clear case in which it was appropriate to enter summary judgment on the respondent's claims [148](d).
5.As to the O 16 RSC application, the respondent had a good defence on the merits and the counterclaim could not succeed; it was not an appropriate case to proceed to trial and should be summarily dismissed [159], [161], [192] ‑ [193]. In any event, it was a clear case where the claims advanced in the counterclaim were statute‑barred, due to the expiration of the relevant limitation period, and on that basis also the counterclaim should not be permitted to proceed to trial [163] ‑ [193].
[2] National Australia Bank Limited v Jackson [2025] WASC 8.
Accordingly, both the O 14 RSC application and the O 16 RSC application were to be allowed and judgment was to be entered for the respondent bank against the appellants. The master also foreshadowed making orders for the first, second and third appellants to deliver up vacant possession of the Property to the respondent [8], [149], [193], [199].
The master gave the respondent bank an opportunity to update the amount due and payable under the Facilities [200]. Thereafter, on 31 January 2025, the master made orders that:
1.The [respondent] has leave pursuant to Order 14 rule 1(1) of the Rules of the Supreme Court 1971 (WA) (RSC) to bring the O 14 Summary Judgment Application.
2.Pursuant to Order 14 rule 3(1) RSC, judgment is entered for the [respondent] against the [appellants].
3.By 28 February 2025, the first, second and third [respondents] are to deliver up to the [appellant] vacant possession of [the Property].
4.Judgment is entered for the [respondent] against the [appellants] in the amount of:
(a)$789,352.35 plus interest from 16 January 2025 until payment in accordance with and at the rates provided by the [Letter of Offer]; and
(b)$118,500.70 plus interest from 16 January 2025 until payment in accordance with and at the rates provided by the [Letter of Offer].
5.Pursuant to Order 16 rule 1 RSC, judgment is entered for the [respondent] against each of the [appellants] in relation to the amended counterclaim filed on 4 December 2023 (Counterclaim).
6.The Counterclaim is dismissed.
7.The [appellants] are to pay the [respondent's] costs of the action, and of the Applications, on a solicitor and own client basis, to be taxed if not agreed

The appeal

The appellants appealed from the primary court's orders made 31 January 2025 by an appeal notice filed 19 February 2025. The appeal is from all of the orders made 31 January 2025. However, the grounds of appeal in the appellant's case are confined to a challenge to the master's reasons in respect of the orders for summary judgment on the respondent bank's application pursuant to O 14 RSC. It is, in the circumstances, not necessary to say anything more about the orders for summary judgment on the appellants' counterclaim pursuant to O 16 RSC.
The grounds of appeal are reproduced in full in the annexure to these reasons. In substance, the grounds of appeal raise the following issues:
1.Is the master in error at primary reasons [77] in finding that the 'Plaintiff Credit Agreement' (referred to by the master as the 'Letter of Offer') is a loan agreement? (Ground 1)
2.Is the master in error at primary reasons [77] in finding that the Plaintiff Credit Agreement (ie the Letter of Offer) is not an instrument within the meaning and for the purpose of s 58 of the Transfer of Land Act 1893 (WA) (TLA)? (Ground 2)
3.Is the master in error at primary reasons [84] in finding that the 'Plaintiff Mortgage Document' (referred to by the master as the 'Mortgage') is properly registered in compliance with s 58 of the TLA and is valid and enforceable? (Ground 3)
4.Is the master in error at primary reasons [81] by not correctly determining the validity of the Plaintiff Mortgage Document (ie the Mortgage)? (Ground 4)
5.Is the master in error at primary reasons [45] in finding that the Mortgage secures the Facilities? (Ground 5)
6.Is the master in error at primary reasons [75] in finding that the Mortgage is the Security described in the Other Details section of the Letter of Offer? (Ground 6)
Grounds 1 and 2 concern the Letter of Offer. Grounds 3 and 4 concern the Mortgage. Grounds 5 and 6 concern whether repayment of the Facilities was secured by the Mortgage. However, as will be seen, the appellants' argument in support of grounds 5 and 6 is premised on the appellants' argument concerning the Mortgage.

The nature of the hearing

The Registrar's Notice to Attend invoked r 43(2)(f) and r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules. Those rules confirm the court's jurisdiction:
(f)to strike out any ground of appeal that does not have a reasonable prospect of succeeding or does not comply with these rules or any order made under them;
…
(g)to dismiss the appeal if:
(i)none of the grounds of appeal has a reasonable prospect of succeeding[.]
The purpose of these rules is to weed out unmeritorious appeals: In de Braekt v Legal Profession Complaints Committee.[3]
[3] In de Braekt v Legal Profession Complaints Committee [2016] WASCA 220 [47].
Both rules are directed to grounds of appeal that do not have a 'reasonable prospect of succeeding'. In that respect:
1.A ground of appeal has a reasonable prospect of succeeding if it has a rational and logical prospect of succeeding, ie it would not be irrational, fanciful or absurd to envisage the ground succeeding. The ground must have a 'real prospect' of success: Samuels v The State of Western Australia;[4] In de Braekt v Legal Profession Complaints Committee [47]; Farrant v Westpac Banking Corporation.[5]
2.If the court is to strike out a ground as not having a reasonable prospect of succeeding, or is to dismiss an appeal on the basis that none of the grounds has a reasonable prospect of succeeding, the court must be positively satisfied that the ground, or all of the grounds, lacks or lack a rational and logical prospect of succeeding: Farrant v Westpac Banking Corporation [19].
3.A ground of appeal does not have a reasonable prospect of succeeding simply because, standing alone, it might be upheld. The ground must allege material error. A ground of appeal will only have a reasonable prospect of succeeding where, if upheld, the ground - either by itself or in combination with other grounds that have a rational and logical prospect of succeeding - would result in the primary court's judgment or order being disturbed: Farrant v Westpac Banking Corporation [20].
[4] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[5] Farrant v Westpac Banking Corporation [2024] WASCA 157 [19].

The affidavit of the first appellant sworn 23 May 2025

At the hearing on 23 May 2025 the appellants sought to adduce additional evidence on the appeal being an affidavit of the first appellant sworn 23 May 2025. The first appellant handed up the affidavit in the course of his oral submissions.
The first appellant's affidavit attached a copy of what was deposed to be a true copy of the original Letter of Offer. The first appellant compared this version of the Letter of Offer to the version of the Letter of Offer that is attached as attachment 'JDP‑2' to Mr Pontifex's affidavit affirmed 16 November 2023. The first appellant deposed that the version of the Letter of Offer provided to the court on behalf of the respondent bank is different to the original Letter of Offer. The first appellant stated that changes had been made to the original Letter of Offer without the knowledge or consent of the appellants and then represented by the respondent to the court as evidence of the original and current agreement. The first appellant asserted that the respondent's version of the Letter of Offer was used to obtain a judgment of the court fraudulently.
In submissions to the court, the first appellant stated that the original Letter of Offer, a copy of which had been attached to his affidavit of 23 May 2025, had been located the previous day in archives.
Counsel for the respondent bank opposed leave being granted to rely on the first appellant's affidavit sworn 23 May 2025 as additional evidence in the appeal. Counsel expressed doubts as to the provenance of the version of the Letter of Offer as attached to the first appellant's affidavit. Counsel pointed out that the respondent bank was disadvantaged by not being able to consider issues as to provenance insofar as the respondent first became aware of the affidavit on it being handed up in the course of the hearing before the court.
We have compared the version of the Letter of Offer that is attached to the first appellant's affidavit with the version of the Letter of Offer that is annexure 'JDP‑2'. There are differences. The cover page of the version attached the first appellant's affidavit appears to contain the first appellant's notations. There are minor formatting differences at page 3, page 26 (cl 14.2, cl 14.4) and page 27 (cl 16.4, cl 17, cl 17.1). There is one substantive difference. This is in relation to cl 16.1 concerning changes to the agreement. The version attached to the first appellant's affidavit provides for changes to the agreement by the appellants acting reasonably. The version at attachment 'JDP‑2' provides for changes to the agreement by the respondent bank acting reasonably. There are minor consequential differences at cl 16.2(a) as to notification of any change.
The appellants did not suggest that the differences to cl 16.1 and cl 16.2(a) had any consequences for their liability to the respondent Bank in respect of the Overdraft or the Business Loan under the Letter of Offer.
We informed the parties that we would address the reception of the first appellant's affidavit sworn 23 May 2025 as part of the court's reasons on the matter before the court. We would not receive the first appellant's affidavit as additional evidence in the appeal. It is not in the interests of justice to do so. There is a strong public interest in the finality of litigation. The appellants have not attempted to establish that the version of the Letter of Offer attached to the first appellant's affidavit could not have been discovered with reasonable diligence prior to the hearing before the master. That seems unlikely to be the case since the document is said to have been located in the appellants' archives. Nor is there a significant possibility that, had the affidavit been adduced in the primary proceedings before the master, it would have led to a different result. No contention was advanced that the appellants' indebtedness to the respondent would have been any different had the relevant terms of the Facilities been those terms in the version of the Letter of Offer attached to the first appellant's affidavit sworn 23 May 2025. Finally, the further evidence did not advance any of the appellants' grounds of appeal in a material way.

The first appellant's affidavit sworn 23 May 2025 will be included in the court's file so that it may be considered if the matter goes further. It has not, however, been admitted as additional evidence on the appeal.

Grounds 1 and 2 - the challenge to the findings concerning the Letter of Offer

The respondent claimed that the Letter of Offer constituted a written loan agreement by which it made the Facilities available to the appellants. In opposing the application under O 14 RSC the appellants said that the Letter of Offer was not registered under the TLA. The appellants contended that, in the absence of registration, s 58 of the TLA meant that the Letter of Offer was not effectual.
The master reproduced s 58 of the TLA. This provides:
58.Instruments not effectual until registered
No instrument until registered in manner herein provided shall be effectual to pass any estate or interest in any land under the operation of this Act or to render such land liable to any mortgage or charge or to make any dealing in respect of Crown land effective, as the case requires; but upon such registration the estate or interest comprised in the instrument shall pass or as the case may be the land shall become liable in manner and subject to the covenants and conditions set forth and specified in the instrument or by this Act declared to be implied in instruments of a like nature, or the dealing in respect of Crown land is made effective, as the case required.
The master then held:
The Letter of Offer is a loan agreement. It is not a mortgage or an instrument by which any estate or interest in land is passed, or one to which s 58 of the TLA applies and is not required to be registered with Landgate [77].
Ground 1 challenges the finding that the Letter of Offer is a loan agreement. Ground 2 challenges the finding that the Letter of Offer is not an instrument. It should, however, be understood that this misstates the master's actual finding. The gravamen of the finding reproduced at [31] above is that the Letter of Offer is not a 'mortgage or instrument' to which s 58 of the TLA applies - not being, for example, a mortgage or instrument by which any estate or interest in land is passed.
The appellants' argument in support of grounds 1 and 2 is adequately summarised in the particulars to the grounds as reproduced in the annexure to these reasons.
The Letter of Offer is reproduced at annexure 'JDP‑2' to Mr Pontifex's affidavit affirmed 16 November 2023 (appearing at pages 15 ‑ 55 of that affidavit). It takes the form of a covering letter dated 20 January 2017, a 'business letter of offer' dated 20 January 2017, terms and conditions, the respondent's offer and the customer's acceptance. The respondent's offer has been signed by an authorised officer on behalf of the respondent. The customer's acceptance has been signed by the appellants. It is plain that, when signed by the appellants as the 'customer', the Letter of Offer takes effect as an agreement. The Letter of Offer states as much throughout the document. The matter is put beyond argument by the terms of the offer and acceptance.
Relevantly, the respondent states at page 38 of the Letter of Offer:
NAB offers to make available to you each Facility on the terms and conditions set out in this Agreement.
The appellants' acceptance states that, by indicating an intention to accept the offer, the appellants 'accept the Agreement' (Letter of Offer page 39).
The Letter of Offer is to be characterised as an agreement for a loan. The respondent offers to make two Facilities available to the appellants - the Overdraft with a facility limit of $100,000 and the Business Loan with a facility limit of $675,000. The facility details and terms and conditions provide for rights and obligations that are commonly found in a loan agreement. There is, for example, provision for advances, redraws and repayment.
Having regard to its purpose and object, as well as its terms, the master was correct to characterise the Letter of Offer as a loan agreement.
So too the master was correct to hold that the Letter of Offer was not required to be registered under the TLA to be effectual. Whether or not the Loan Agreement might meet a dictionary definition of the term 'instrument' - or even the s 4(1) TLA definition of the term 'instrument' - is beside the point. Section 58 of the TLA has a confined operation. It applies so that, relevantly, an instrument is not effectual to pass any estate or interest in land or render land liable to a mortgage or charge until the instrument is registered in the manner provided by the TLA. But, as the master recognised, the Letter of Offer neither passed any estate or interest in the Property nor rendered the Property liable to any mortgage or charge. The Letter of Offer did not need to do so given that the Property was mortgaged by the Mortgage. Accordingly, while it was accepted by the respondent that the Letter of Offer was not registered under the TLA, that circumstance was of no consequence for the respondent's monetary claim under the Letter of Offer. And, so far as the respondent sought vacant possession of the Property, it was enough that the Mortgage was registered under the TLA.
Grounds 1 and 2 do not have a reasonable prospect of succeeding.

Grounds 3 and 4 - the challenge to the findings concerning the Mortgage

Grounds 3 and 4 relate to the Mortgage.
Before the master, the appellants contended that the Mortgage was an unregistered instrument that could not be relied on as it breached s 58 of the TLA and was otherwise invalid [74](c). The master recorded that the appellants claimed the Mortgage to be invalid and unenforceable because [78] ‑ [79]:
1.The volume and folio numbers had been cancelled.
2.The respondent had altered their unregistered mortgage by the addition of parties and volume and folio numbers.
3.The Mortgage was an unregistered instrument that could not be relied on because it breached s 58 of the TLA.
4.The Mortgage was invalid because no monetary amount was stated in the instrument registered with the Registrar of Titles.
The master made a finding that there was no requirement that the Mortgage state a monetary amount [83]. The master also made findings that:
There is no evidence to support the [appellants'] submission to the effect that the signatures on the Mortgage are not the [appellants'], and no reason to doubt Mr Pontifex's evidence to the effect that a true copy of the Mortgage is attached to the First Pontifex Affidavit [ie the affidavit sworn 16 November 2023] [81].
I am satisfied that the Mortgage is properly registered in compliance with s 58 of the TLA and is valid and enforceable [84].
Ground 4 challenges the first of those findings; ground 3 challenges the second of those findings. The challenge by ground 4 is only to the finding proving the Mortgage. There is no challenge to the finding that there is no evidence to support the submission that the signatures on the Mortgage are not the first, second and third appellants' signatures. That finding is plainly correct given that there is no such evidence in the first appellants' affidavit sworn 22 February 2024.
In substance the appellants challenge whether the respondent bank satisfactorily established the existence and registration of the Mortgage that was said to encumber the Property as security for repayment of the Facilities. That challenge is in the context of the respondent's O 14 RSC summary judgment application. Accordingly, it was incumbent on the respondent to establish that, so far as the appellants sought to impugn the existence and the efficacy of the Mortgage, this was the clearest of cases where there was a high degree of certainty about the ultimate outcome of the proceedings if they were to go to trial. It had to be clear that there was no real question to be tried.
The particulars in support of ground 3 contend that there is no evidence - or that the respondent has not tendered evidence - of a registered mortgage for the purpose of s 58 and/or s 105 of the TLA. In written submissions in support of ground 3 the appellants made the same argument. The appellants acknowledged that the respondent had produced a document entitled 'Mortgage'. The appellants said, however, that this document had not been proved as being a properly registered mortgage under and in compliance with the TLA. That, in substance, was also the argument advanced in support of ground 4. The appellants said that the respondent did not tender its document entitled 'Mortgage' as being a true copy of the Mortgage and did not adduce evidence that this was the instrument registered with the Registrar of Titles under the TLA. The appellants relied on the document reproduced at annexure 'KESJ‑3' to the first appellant's affidavit and pointed to the differences between this document and the document at annexure 'JDP‑6' to Mr Pontifex's affidavit affirmed 16 November 2023 as adduced by the respondent.
The documentary evidence before the master established the following matters conclusively:
1.The Property, of which the first, second and third appellants are the registered proprietors of the estate in fee simple, is comprised of two certificates of title being:
(a)Lot 8669 on deposited plan 201627 (the land described in certificate of title volume 1986 folio 76) (see annexure 'JDP‑4'); and
(b)Lot 8678 on deposited plan 201627 (the land described in certificate of title volume 1986 folio 78) (see annexure 'JDP‑5').
2.The Property is encumbered by Mortgage E313667 of which the respondent is the registered proprietor (see annexures 'JDP‑4' and 'JDP‑5').
3.Mortgage E313667 was registered under the TLA against the Property on 12 March 1990 (see annexures 'JDP‑4' and 'JDP‑5'). (The fact that Mortgage E313667 is registered under the TLA is also established by annexure 'KESJ‑3' and par 13 of the first appellant's affidavit sworn 22 February 2024.)
4.Mortgage E313667 is in the form of the documents adduced in evidence by the appellants and the respondent (see annexure 'JDP‑6' and annexure 'KESJ‑3').
At this point it is necessary to address the differences between the documents reproduced at annexure 'JDP‑6' and annexure 'KESJ‑3'.
At one level the differences do not matter to the master's ultimate conclusion. The certificates of title prove that the Property is encumbered by Mortgage E313667 in favour of the respondent. And, even though the appellants take issue with the document at annexure 'JDP‑6', the appellants' own evidence establishes that Mortgage E313667 was registered under the TLA on 12 March 1990. However, given what is raised by grounds 3 and 4, it is as well to address the differences and explain why the differences are of no consequence for the purpose of the respondent bank's claim.
The differences between the documents arise from their immediate provenance - the document at annexure 'KESJ‑3' reproduces a search of the Registrar of Titles' records in relation to Mortgage E313667 whereas the document at annexure 'JDP‑6' reproduces the copy of Mortgage E313667 maintained in the respondent's records. In that respect annexure 'JDP‑6' contains notations dealing with events after the registration of Mortgage E313667 with the Registrar of Titles on 12 March 1990. For example, 'JDP‑6' contains notations dealing with upstamping on various dates including 11 February 1991, 3 November 1992, 25 October 1994, 28 December 1994, 5 January 1995, 22 January 1998 and 20 March 2001.
The document reproduced at annexure 'JDP‑6' also contains a notation which states, of the land being mortgaged, that it was 'formerly' Nelson Locations 8669, 8670, 8671 and 8678 (the land described in certificate of title volume 1704 folio 655). By contrast the document at annexure 'KESJ‑3' simply refers to those particulars. The notation on the document at annexure 'JDP‑6' provides that the land is 'now' Nelson Location 8669 (the land described in certificate of title volume 1986 folio 76) and Nelson Location 8678 (the land described in certificate of title volume 1986 folio 78). There are also notations stating that the encumbrance was released or discharged as to other parts of the land as originally encumbered by Mortgage E313667.
These differences simply reflect the respondent's own records of what has occurred in relation to Mortgage E313667 since it was registered in 1990. They do not affect the validity or efficacy of Mortgage E313667 as a duly registered mortgage encumbering the Property.
There is a difference between the particulars of the land as mortgaged by Mortgage E313667 and the certificates of title to the Property as reproduced in annexures 'JDP‑4' and 'JDP‑5'. Again, the differences do not matter to the master's ultimate conclusion - the certificates of title prove that the Property is encumbered by Mortgage E313667 in favour of the respondent. But, as the differences are easily explained, we should proceed to explain how the differences have come about and why they do not affect the validity or efficacy of Mortgage E313667 as a duly registered mortgage encumbering the Property.
The certificates of title to the Property as reproduced in annexures 'JDP‑4' and 'JDP‑5' both record that the land was previously part of that land described in certificate of title volume 1704 folio 655. This, it will be recalled, is the certificate of title as stated on Mortgage E313667 as registered with the Registrar of Titles under the TLA as reproduced in annexure 'KESJ‑3' (see [51] above).
The certificates of title to the Property also state that:
1.The land parcel identifier of 'Nelson Location 8669' had been changed to 'lot 8669 on deposited plan 201627' on 27 August 2003 to enable issue of a digital certificate of title (annexure 'JDP‑4').
2.The land parcel identifier of 'Nelson Location 8678' had been changed to 'lot 8678 on deposited plan 201627' on 27 August 2003 to enable issue of a digital certificate of title (annexure 'JDP‑5').
Annexure 'JDP‑5' also contains a superseded version of the certificate of title volume 1986 folio 78. This depicts the following land as was originally comprised in certificate of title volume 1704 folio 655:

Accordingly, when Mortgage E313667 was registered with the Registrar of Titles under the TLA on 12 March 1990, the Property was part of the land comprised in Nelson Locations 8669, 8670, 8671 and 8678 (the land described in certificate of title volume 1704 folio 655). Mortgage E313667 encumbered all of that land including land that later became the Property. Afterwards - by no later than 24 December 1993 having regard to annexures 'JDP‑4' and 'JDP‑5' - the land the subject of certificate of title volume 1704 folio 655 was subdivided into other certificates of title. These included the certificates of title to the Property. The land parcel identifiers associated with those certificates of title have since been modified. But none of this affected the validity or efficacy of Mortgage E313667 as a duly registered mortgage encumbering the Property.
The documentary evidence before the master established conclusively that: (1) the Property is encumbered by Mortgage E313667 of which the respondent is the registered proprietor; (2) Mortgage E313667 was registered under the TLA against the Property on 12 March 1990; and (3) Mortgage E313667 is in the form of the documents adduced in evidence by the appellants and the respondent at annexure 'KESJ‑3' and annexure 'JDP‑6' respectively.
In the circumstances grounds 3 and 4 do not have a reasonable prospect of succeeding.

Grounds 5 and 6 - the challenge to the findings as to whether the Mortgage secures the Facilities

Ground 5 challenges the following finding:
Despite the [appellants'] submissions to the contrary, I am satisfied that the Mortgage secures the Facilities. The [appellants'] argument to the effect that neither the Business Loan nor the Overdraft specify any additional security in the 'Facility Specific Security' section that relates to each facility, is without merit. The Mortgage is clearly the 'Security' described in the 'Other Details', as set out above [45].
The ground does not engage with the reasons given by the master for the conclusion that the Mortgage secures the Facilities. See the primary reasons at [44] ‑ [45]. Those reasons are plainly correct. However, as they are not challenged, there is no need to rehearse them. Instead, in alleging error in the conclusion that the Mortgage secures the Facilities, the appellants again take issue with whether there is the requisite proof of a registered mortgage. The appellants say that there is no evidence - and the respondent has not tendered evidence - of a registered mortgage that is in an approved form compliant with the TLA describing the Property and the secured money.
Ground 6 relates to the appellants' contention before the master that the Letter of Offer stated that no security was applicable to the Facilities. It challenges the following finding in answer to that contention:
As to the first of the allegations relating to the Letter of Offer, as stated earlier in these reasons, the [appellants'] argument to the effect that the Letter of Offer does not specify any additional security under 'Facility Specific Security' for each facility, is without merit. The Mortgage is clearly the 'Security' described in the 'Other Details' section of the Letter of Offer [75].
Again, as with ground 5, in advancing ground 6 the appellants do not engage with the master's obviously correct reading of the Letter of Offer. Ground 6 is instead based on the appellants' contention that there is no evidence of a registered mortgage that is compliant with the TLA.
Grounds 5 and 6 fail for the same reasons as grounds 3 and 4 fail. To the extent that, by ground 5, the appellants take issue with whether Mortgage E313667 is in an approved form, the instrument itself records that the form of the mortgage was approved. For the reasons we have given in dealing with grounds 3 and 4, the Property is specified in Mortgage E313667. Finally, insofar as Mortgage E313667 recorded that the land the subject of the mortgage was mortgaged 'with the payment, satisfaction and discharge of the moneys hereby secured', there was no need to specify a monetary amount on the face of the instrument.
Neither ground 5 nor ground 6 has a reasonable prospect of succeeding.

Conclusion and orders

For these reasons, being satisfied that none of the grounds of appeal has a reasonable prospect of succeeding, we made orders that:
1.The appeal is dismissed.
2.The respondent is discharged from its undertaking as proffered by the respondent's solicitors' letter dated 14 March 2025 as accepted in par 1 of the orders of the court made 21 March 2025.
3.Paragraphs 2 and 4 of the orders of the court made 21 March 2025 are discharged.
4.The appellants' application in an appeal dated 20 February 2025 is dismissed.
5.The appellants pay the respondent's costs of the appeal and the application in an appeal dated 20 February 2025, to be assessed if not agreed.
Paragraphs 2 ‑ 4 of the orders concerned an application by the appellants to suspend enforcement of the order for delivery up of vacant possession of the Property pending the hearing and determination of the appeal. The appellants' application was adjourned in circumstances where the respondent bank proffered an undertaking pending the determination of the appeal. The appeal having been determined it was appropriate to discharge the respondent from its undertaking. So too the appellants' application had to be dismissed and it was necessary to make a consequential order revoking earlier orders made on 21 March 2025 implementing the regime effected by the prior acceptance of the respondent's undertaking.
The costs order followed the event.

Annexure: Grounds of Appeal

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
Associate to the Hon Justice Vaughan
26 MAY 2025