Kounis v Westpac Banking Corporation [No 2] - [2023] WASCA 185

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   KOUNIS -v- WESTPAC BANKING CORPORATION [No 2] [2023] WASCA 185
CORAM:   VAUGHAN JA
VANDONGEN JA
LUNDBERG J

HEARD:   12 DECEMBER 2023
DELIVERED          :   12 DECEMBER 2023
PUBLISHED           :   12 DECEMBER 2023
FILE NO/S:   CACV 96 of 2022
BETWEEN:   AINSLIE IRENE KOUNIS
Appellant
AND
WESTPAC BANKING CORPORATION
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   SANDERSON M
File Number            :   CIV 1600 of 2021

Catchwords:

Banking and finance - Mortgage - Appeal from order for possession - Summary judgment - No point of principle - Turns on own facts

Legislation:

Nil

Result:

Extension of time to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	P Honey

Solicitors:

Appellant	:	In person
Respondent	:	MinterEllison

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

Nil

REASONS OF THE COURT:

Overview

This is an appeal against an order for possession entered by way of summary judgment by Master Sanderson on 8 September 2022 against the appellant in favour of the respondent bank.
After hearing from the parties the court made orders dismissing the appeal with costs. The court informed the parties that written reasons would be provided for those orders in due course. These are our reasons for the orders of the court.

Background

The respondent bank brought proceedings against the appellant for an order for possession of mortgaged land by a writ filed on 2 July 2021. A statement of claim was filed on 12 August 2021. By chamber summons dated 8 October 2021 the respondent applied for summary judgment. The application was supported by a number of affidavits. The appellant had previously filed a defence to the statement of claim. Subsequently, on 14 July 2022, the appellant filed an amended defence. The appellant also filed affidavits in opposition to the application for summary judgment. The appellant relied on her affidavits sworn on 24 August 2021 and 4 November 2021.
The evidence reveals that:
1.The appellant is the registered proprietor of a property at 7 Rosea Court, Thornlie.
2.The appellant mortgaged the property by a mortgage dated 11 June 2008 in favour of the respondent. The mortgage was subsequently registered pursuant to the Transfer of Land Act 1893 (WA). Among other things, the mortgage secures all money which the appellant owes the respondent now or in the future under any agreement or arrangement to which the appellant and the respondent were a party.
3.The respondent made advances to the appellant pursuant to two loan agreements, the repayment of which was secured by the mortgage. The advances comprised:
(a)a 'first loan account' - this was described as a 'Rocket Repay Home Loan - Low Doc' pursuant to which in or about mid‑2008 the respondent made a $250,000 advance to the appellant;
(b)a 'second loan account' - this was described as an 'Equity Access Loan - Plan 2 - Low Doc' pursuant to which between January and April 2009 the respondent made advances totalling around $130,000 to the appellant.
4.The appellant failed to pay to the respondent, by the time due for payment, various amounts pursuant to the first and second loan accounts (as secured by the mortgage) with the result that, as at 24 March 2021, the appellant was in arrears under the two loan accounts.
The respondent bank said that, following the payment failures, it issued and served a default notice. One of the appellant's grounds of appeal denied the service of a default notice. Accordingly, we will deal with the evidence on this point separately. It was, however, not in dispute that the appellant had not paid to the respondent the amounts under the first and second loan accounts following the date of the demand relied on by the respondent. As at 7 September 2022 the amounts outstanding were verified by a solicitor of the respondent as being: (1) in respect of the first loan account - a balance of $284,301.46; and (2) in respect of the second loan account - a balance of $156,781.59.
The respondent commenced the possession proceedings against the appellant in the factual context we have recounted. As we have mentioned, in due course the respondent sought and obtained summary judgment. Judgment was restricted to an order for possession. At no time has the respondent claimed in debt seeking monetary relief.

The entry of summary judgment

The principles governing summary judgment applications by a claimant are well known.
Summary judgment is a procedure designed to deal with cases that are not fit for trial. The power to determine a proceeding summarily must be attended with great care - sometimes expressed in terms of 'exceptional caution'. It is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if they went to trial, that summary judgment ought properly to be granted. The claimant carries the burden of persuading the court that the claim is a good one, that there is no defence to it, that leave to defend should not be granted and that judgment should be given for the claimant. If the claimant can establish a prima facie right to summary judgment, the burden then shifts to the defendant to satisfy the court why judgment should not be given against him or her. In this respect the defendant has an evidentiary burden. However, the overall burden of persuasion remains on the party moving for summary judgment.
A defendant seeking to resist summary judgment does not have to show a defence on the balance of probabilities. However, the defendant must at least show cause as to why there is an arguable defence.
In short oral reasons the master held that there was nothing in the documents filed by the appellant which would provide any basis for a defence at all.

Grounds of appeal

The appellant's grounds of appeal lack legal precision. However, the appellant is a self‑represented litigant. It is important that the appellant's rights, and any possible basis for an appeal against the order for possession, not be obfuscated by the appellant's own advocacy. Without intending any disrespect, and to assist the appellant so that she is not unjustly deprived of appellate review by a poorly expressed or unstructured statement of her grounds of appeal, we will endeavour to re-state the substance of the appellant's grounds of appeal adopting a more conventional legal analysis. Largely, but not exclusively, this requires the elimination of significant repetition or overlap within the appellant's statement of her grounds of appeal.
In substance the appellant contends that:
1.The master erred in fact in finding that money was loaned by the respondent to the appellant in that: (a) the respondent adduced no evidence as to its ownership of the money; and (b) the appellant denied the allegation. According to the appellant, the master erred in fact in assuming that the respondent had standing as a creditor absent any evidence to substantiate the claim. See grounds 1(i) and 3(ii).
2.The master erred in fact in finding that there was a default in payment under the loan agreement in that the appellant denied the default. See ground 1(ii).
3.The master erred in fact in finding that there was nothing in the documents filed by the appellant which would provide a defence in that the appellant filed a defence to the respondent's claims. See grounds 2 and 3(iii).
4.The master erred in fact and in law in entering judgment under O 14 r 3(1) of the Rules of the Supreme Court 1971 (WA) (RSC) when the appellant raised a number of issues or questions in dispute which ought to be tried. See grounds 3(i) and 3(iv).

Disposition

The final two matters raised by the appellant should be dealt with at the outset. First, as to grounds 3(i) and 3(iv), the alleged issues or questions in dispute which the appellant says ought to be tried were those raised in other grounds. There is no identification of any independent alleged error. Accordingly, if the other grounds fail then so too do grounds 3(i) and 3(iv). Second, as to grounds 2 and 3(iii), the appellant simply relies on the fact that she had filed a defence. The mere filing of a physical defence does not entitle the appellant to a trial. The reference in O 14 r 1(1) RSC to 'no defence' means no arguable defence. That concept of 'arguable defence' is the sense in which the master held that the documents filed by the appellant did not provide any basis for a defence. Grounds 2 and 3(iii) are misconceived and must be dismissed.
Grounds 1(i) and 3(ii) contend, in substance, that the appellant raised a triable issue as to the respondent's standing as a creditor with a right to claim money against the appellant - the appellant says that the respondent bank provided no evidence of any beneficial entitlement to the money advanced or claimed. The same contention was made in the amended defence (pars 5, 10) and throughout the appellant's affidavits in opposition to the application for summary judgment.
In support of grounds 1(i) and 3(ii) the appellant submits that:
1.The appellant challenged the respondent's claim that it had beneficial rights to the money claimed.
2.The respondent provided no evidence to establish beneficial rights to the money claimed.
3.The respondent did not have funds in its account when it offered a loan to the appellant. Rather, the funds were sourced from a third-party.
4.Accordingly, the respondent acted as an agent and at no time did it hold unconditional beneficial rights to the money.
There is no evidentiary support for the final two steps in the appellant's contentions. The assertion that the respondent bank sourced and advanced funds as agent for some undisclosed third‑party is no more than a bald assertion by the appellant. It does not establish a triable issue whereby the master should have refused the application for summary judgment.
It is apparent, moreover, that there is no dispute as to the bare fact that the respondent bank made an advance to the appellant. In particular, as to what was referred to as the 'first loan account', the respondent pleaded at par 5 of its statement of claim that on or about 11 June 2008 the respondent advanced the sum of $250,000 to the appellant. In her amended defence the appellant stated:
Paragraph 5 - the defendant admits the comments in paragraph 5 save to say the plaintiff has not particularised the source of the funds provided. In particular, whether the plaintiff has beneficial ownership of the funds and therefore a right of claim. (Amended defence, par 5)
The appellant's amended defence put in issue whether there was an advance for a 'second loan account' (Amended defence, par 10). However, the respondent adduced affidavit evidence that satisfactorily established the fact of the advance. That evidence was never contradicted by affidavit evidence on the part of the appellant positively denying the fact of the advance.
Accordingly, the high‑point of the contention by grounds 1(i) and 3(ii) is the appellant's submission that the respondent bank never adduced any evidence that it was the beneficial owner of the money advanced pursuant to the first and second loan accounts. The appellant contends, consequently, that the respondent did not establish that it is entitled to make a claim in respect of those funds.
The submission fails on two levels. First, it has no evidentiary support. It is not enough for the appellant to make a bald assertion. While the overall burden of persuasion remains with the respondent, it is incumbent on the appellant to offer some evidence that requires an answer. There is none. Second, even supposing there to be a basis in fact for the assertion, it takes the appellant nowhere in establishing a triable issue. As between the respondent and the appellant, at law, as holder of the legal title to the choses in action represented by the first and second loan accounts and the mortgage, the respondent bank remains entitled to enforce the mortgage by taking the proceedings for possession. Accordingly, the contention pressed by grounds 1(i) and 3(ii) is misconceived. The master's conclusion that the appellant did not have an arguable defence that the respondent was not entitled to make a claim in respect of the money advanced pursuant to the first and second loan accounts was correct.
Grounds 1(i) and 3(ii) fail.
Ground 1(ii) contends, in substance, that the appellant raised a triable issue as to whether there was a default in payment under the loan agreement. More specifically, the appellant disputed being in default because she denied service of the default notice and said that the respondent had not particularised the alleged means of service or provided evidence of service (Amended defence, pars 8, 9, 15). However, in an apparent contradiction, the appellant also pleaded that payment had been refused due to the failure of the respondent to adequately particularise the basis on which it made the demand (Amended defence, par 17).
The respondent bank filed an affidavit of Gary Sparks sworn 21 September 2021 verifying service on the appellant of a notice of default pursuant to s 106 of the Transfer of Land Act and s 88 of sch 1 to the National Credit Code. The default notice was served on 30 March 2021. Service was effected by affixing the default notice to the appellant's front door at the property. Leaving the notice in a conspicuous place on the mortgaged property was adequate and proper service of the notice: Transfer of Land Act s 106(2)(c).
The appellant's affidavits do not affirmatively deny that the default notice was affixed to the appellant's front door. Moreover, attached to the appellant's affidavit sworn 4 November 2021 is an email dated 12 April 2021 - 12 days after the date on which Mr Sparks says that he served the default notice - in which the appellant stated:
[W]e attach our invoice for one count of trespass to the property despite there being No Trespass signs posted at the entrance of the property and despite previous requests not to enter the property and stick documents to the front door. Refer attached invoice. (Attachment 'AIK-4')
There is a similar statement in a further email of the appellant dated 29 April 2021 (see attachment 'AIK-5' to the appellant's affidavit sworn 4 November 2021). Moreover, the appellant's affidavit sworn 4 November 2021 goes on to attach her letter dated 31 May 2021 in which the appellant stated:
The invoice that was issued to Westpac dated 29th April 2021 still stands. On 30th March 2021, when you claim to have had the default notice delivered to the property known as 7 Rosea Court, Thornlie, the notice was not served lawfully as Westpac breached the 'No Trespass' sign which was situated at the entrance of the property and notated 4 High Court of Australia Rulings on it. You cannot ignore these High Court Rulings and therefore, the invoice for one count of Trespass to the property still remains outstanding and subject to payment. (Attachment 'AIK-7')
In the circumstances there is no merit in the appellant's contention that the appellant raised a triable issue as to whether there was a default in payment under the loan agreements. The contention relies on the appellant's denial of service of the default notice in her amended defence. Service is proven by the respondent's affidavit evidence. The appellant did not deny the truth of that evidence. To the contrary, the appellant's contemporaneous correspondence confirms the making of the demand. The appellant's non‑payment following the demand is uncontroversial. Ground 1(ii) fails.

Conclusion

All of the appellant's grounds of appeal failed. Accordingly, the appeal had to be dismissed. The appeal was filed out of time and the appellant sought an extension of time to appeal. The application for an extension was supported by a perfunctory affidavit which did not provide a proper explanation for the appellant's delay. The lack of merit in the appeal, coupled with the lack of any proper explanation for the late filing of the appeal notice, meant that it was inappropriate to extend the time for the appeal notice to be filed and served. The court made an order refusing the application for an extension.
The costs of the appeal followed the event.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EM
Associate to the Honourable Justice Vaughan
12 DECEMBER 2023