Matthew Daniel Vines and John Gervase Shanahan as trustees in bankruptcy of Linda May Lee Moh v Ezeckiel Catao

[2025] WASC 368

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   MATTHEW DANIEL VINES AND JOHN GERVASE SHANAHAN as trustees in bankruptcy of LINDA MAY LEE MOH -v- EZECKIEL CATAO [2025] WASC 368

CORAM:   MASTER RUSSELL

HEARD:   2 SEPTEMBER 2025

DELIVERED          :   2 SEPTEMBER 2025

FILE NO/S:   CIV 1445 of 2025

BETWEEN:   MATTHEW DANIEL VINES as trustee in bankruptcy of LINDA MAY LEE MOH

First Plaintiff

JOHN GERVASE SHANAHAN as trustee in bankruptcy of LINDA MAY LEE MOH

Second Plaintiff

AND

EZECHIEL CATAO

Defendant

Catchwords:

Practice and procedure - Summary judgment - Application for leave to apply for summary judgment pursuant to O 14 r 1 Rules of the Supreme Court 1971 (WA) - Turns on own facts

Property Law - Application for sale of land under s 126(1) Property Law Act 1969 (WA) - Sale of land in lieu of partition - Order for sale of land - Orders as to conduct of sale - Turns on own facts

Legislation:

Bankruptcy Act 1966 (Cth) s 58
Property Law Act 1969 (WA) s 126(1)
Rules of the Supreme Court (WA) O 14 r 1, O 14 r 1(1), O 14 r 2(1), O 53 r 3(1), O 53 r 4(1)

Result:

Application granted
Summary judgment for the plaintiff
Order for sale of land made pursuant to s 126(1) of the Property Law Act 1969 (WA)

Category:    B

Representation:

Counsel:

First Plaintiff	:	Mr J P Cook
Second Plaintiff	:	Mr J P Cook
Defendant	:	No appearance

Solicitors:

First Plaintiff	:	Mendelawitz Morton Commercial Lawyers
Second Plaintiff	:	Mendelawitz Morton Commercial Lawyers
Defendant	:	In Person

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

Bombara v Bombara [2010] WASC 314

Cologna Investments Pty Ltd as trustee for the P. and D. Panizza Family Trust v Caranna [2023] WASC 368

Deputy Commissioner of Taxation v Lafferty [2017] WASC 257

Martin-Smith v Woodhead [1990] WAR 62

Mineralogy Pty Ltd v Sino Iron (No 11) [2016] WASC 235

Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635

Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14

Trainor v Trainor [2021] WASC 40

Westpac Banking Corporation v Anderson [2017] WASC 106

Westpac Banking Corporation v Figliomeni [2024] WASC 292

MASTER RUSSELL:

(These reasons were delivered orally on 2 September 2025 and have been edited from the Court's record to include references, headings and to correct matters of grammar and expression).

Introduction

1. The plaintiffs, Matthew Daniel Vines and John Gervase Shanahan, (Trustees) commenced this proceeding on 29 April 2025 by writ of summons indorsed with a statement of claim, in their capacities as joint and several trustees of the bankrupt estate of Linda May Lee Moh (Bankrupt).

2. The Trustees were appointed on 1 May 2023 upon orders being made for sequestration of the Bankrupt's estate under the Bankruptcy Act 1966 (Cth) (Bankruptcy Act).

3. Prior to her bankruptcy, the Bankrupt and the defendant, Ezechiel Catao, were the registered proprietors, as joint tenants, of the land and property in Wilson in the State of Western Australia, more particularly described as Lot 336 on Plan 13610 and being the whole of the land comprised in Certificate of Title Volume 1598 Folio 841 (Property).

4. By operation of s 58 of the Bankruptcy Act, the Bankrupt's interest in the Property vested in the Trustees upon their appointment on 1 May 2023. Following lodgment of a transmission application pursuant to s 234 of the Transfer of Land Act 1893 (WA) on 21 January 2025 (Transmission Application), the registered proprietors of the Property are now the defendant as to a half share, and the Trustees as to a half share, as tenants in common.

5. By chamber summons filed on 10 June 2025, as amended on 3 July 2025, the Trustees apply for summary judgment against the defendant pursuant to O 14 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC) (Application). The plaintiffs seek an order for sale of the Property in lieu of partition pursuant to s 126(1) of the Property Law Act 1969 (WA) (Property Law Act), and ancillary orders as to the conduct of the sale of the Property.

6. The Trustees also seek leave to bring the Application out of time, as it was not made within 21 days of the date the defendant entered an appearance, as required under O 14 r 1 RSC. The defendant filed a memorandum of appearance on 13 May 2025. As such, the time for bringing the Application without leave expired on 3 June 2025. The Application was filed on 10 June 2025 and amended on 3 July 2025, pursuant to orders made on 8 July 2025.

Materials relied upon in support of the Application

1. In support of the Application, the Trustees rely on an outline of submissions filed on 7 August 2025 and affidavits of:

   (a)Matthew Daniel Vines sworn and filed on 10 June 2025 (Vines Affidavit);

   (b)Zheliang Weng affirmed and filed on 10 July 2025 (First Weng Affidavit) and on 22 August 2025 (Second Weng Affidavit); and

   (c)Jonathon Peter Cook sworn and filed on 7 August 2025 (Cook Affidavit).

2. Orders were made on 2 July 2025 for the defendant to file any affidavits in opposition to the Application by 24 July 2025 and any outline of submissions by 21 August 2025. The defendant has not filed any materials in opposition to the Application.

3. The defendant did not attend the hearing today.  Notice of the hearing was sent to him on 22 August 2025 to the email address provided in his memorandum of appearance.

4. An email was received by the Court on 1 September 2025 attaching a letter from the defendant and a medical certificate saying the defendant 'has a medical condition and will be unfit for work/study from 01/09/2025 to 02/09/2025 inclusive.' In his covering letter, the defendant says he has been diagnosed with COVID-19. The defendant was asked to advise the Court if he was able to attend the hearing of the Application by audio‑link. He responded saying he was unable to do so and would not be available.

5. Mr Catao was previously unable to attend Court for a directioons hearing on 24 June 2025 as he had recently been discharged from hospital and had tested positive for COVID‑19. The defendant was subsequently assisted, but not formally represented, by Legal Aid, and orders made by consent on 2 July 2025 programming the Application to a special appointment.

6. Mr Cook deposes in the Cook Affidavit to communications between the first plaintiff, Mr Vines, and the office of the Public Advocate who advised they were assessing the defendant's capacity and, subsequently, that the Public Advocate did not intend to pursue any guardianship or other application in relation to the defendant.[1]

   [1] Cook Affidavit [10] - [17], 'JPC-3'.

7. Although the defendant has stated that he is unable to attend today's hearing, he has not requested an adjournment of the Application. I appreciate the defendant has a medical certificate saying he is unfit for work or study and he has informed the Court he is unable to attend. However, the defendant has filed no affidavit or submissions indicating any defence to the Trustees' claim and, for the reasons that follow, in the absence of an arguable defence or other reason why the matter should proceed to trial, I was satisfied that there is no prejudice to the defendant and it was appropriate to hear the Application in the defendant's absence.

Procedural requirements and applicable legal principles relating to summary judgment

1. The procedural requirements for an application for summary judgment were summarised by Archer J[2] in Cologna Investments Pty Ltd as trustee for the P. and D. Panizza Family Trust v Caranna.[3]

   [2] As her Honour then was.

   [3] Cologna Investments Pty Ltd as trustee for the P. and D. Panizza Family Trust v Caranna [2023] WASC 368 (Cologna Investments) [27] (Archer J).

2. An application for summary judgment must be brought within 21 days after an appearance has been filed, or a later time with leave of the court.[4]

   [4] O 14 r 1(1) RSC.

3. The 21-day limit to bring an application for summary judgment reflects the view that such applications should be brought promptly and at an early stage of the proceedings, before unnecessary expense is incurred. Where leave is required to bring an application out of time, the onus is on the applicant to demonstrate that the delay is justifiable in the circumstances. Any prejudice to the other party caused by the delay and the prospects of the application are also relevant factors.[5]

   [5] Cologna Investments [26], [27.2]. See also Mineralogy Pty Ltd v Sino Iron (No 11) [2016] WASC 235 [4] (Chaney J); Deputy Commissioner of Taxation v Lafferty [2017] WASC 257 (Lafferty) [40] - [41] (Tottle J); Westpac Banking Corporation v Anderson [2017] WASC 106 (Westpac Banking) [38] (Pritchard J).

4. An application pursuant to O 14 RSC must be supported by an affidavit verifying the facts upon which the claim is based and stating that, in the deponent's belief, there is no defence to the claim.[6]

   [6] O 14 r 2(1) RSC.

5. The principles that apply to an application for summary judgment are well established. The key principles were summarised by the Court of Appeal in Sutton Investments Pty Ltd v Realistic Investments Pty Ltd, as follows:[7]

   Summary judgment will be granted only when there is no real question to be tried. The power to order summary judgment is one that should be exercised with great care: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99. It is only the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if it went to trial, that summary judgment ought properly be granted: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57]; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [46]; Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [24], [53] - [55].

   [7] Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24].

6. The plaintiff bears the burden of persuading the court that the claim is a good one and there is no defence to it. If the plaintiff's affidavit or affidavits in support of the application make out a prima facie case on these two matters, the evidentiary burden ordinarily passes to the defendant to show there is an arguable defence or some other reason there ought to be a trial of the action. A defendant seeking to demonstrate an arguable defence or some other reason why there ought to be a trial must condescend to particulars and provide sufficient details of their defence.[8]

   [8] Westpac Banking [53] - [54], [103]. See also Lafferty [54] and the authorities referred to.

Leave to bring the Application out of time

1. As noted, the defendant filed an appearance on 13 May 2025. As such, the 21‑day time limit for bringing an application for summary judgment expired on 3 June 2025. The Application was filed 7 days later, on 10 June 2025.

2. This is a short delay, which is explained in the First Weng Affidavit.[9]  Mr Weng explains that the Trustee's solicitors attempted to confer with the defendant regarding the summary judgment application on 23 May 2025 and asked the defendant to advise of any defence by 30 May 2025.  No response was received to the plaintiff's solicitors' request.

   [9] First Weng Affidavit [5] - [8], 'ZW-1'.

3. A further attempt was made to confer with the defendant by telephone using the number provided in the defendant's memorandum of appearance.  However, the Trustee's solicitors were unable to reach the defendant on that number which appeared to be incomplete.

4. There was a short delay in Mr Vines swearing his affidavit in support of the Application, as he was on leave.

5. It also appears that the Trustees relied upon an order made by a Registrar of the Court on 5 June 2025 to the effect that the time within which any application for summary judgment was to be filed and served was extended to 10 June 2025.

6. As I observed in Westpac Banking Corporation v Figliomeni,[10] the usual practice of the Court is for applications for summary judgment to be determined by a Judge or Master, and as such do not fall within the jurisdiction of a Registrar, as prescribed in O 60A RSC. It follows, in my view, that the grant of leave to bring an application for summary judgment later than 21 days after an appearance is filed, under O 14 r 1 RSC, is a matter to be determined by a Judge or Master. This was accepted by counsel appearing for the plaintiff.

   [10] Westpac Banking Corporation v Figliomeni [2024] WASC 292 [68].

7. I am satisfied on the evidence before me that, although there was a delay in bringing the Application, it is not an undue delay and was justifiable in the circumstances. The Application is still brought at an early stage of the proceedings and before a defence has been filed. There is no evidence of any prejudice to the defendant caused by the short delay in bringing the Application.

8. For these reasons, I am satisfied that it is appropriate that the plaintiff have leave to bring the Application. The time for bringing the Application should be, and is, extended to the date of filing, 10 June 2025.

The facts relevant to the plaintiffs' claim and the Application

1. The following facts, verified by the affidavits filed in support of the Application, make up the essential elements of the Trustees' claim.

2. On 1 May 2023, a sequestration order was made under the Bankruptcy Act in relation to the estate of the Bankrupt, and the Trustees were appointed as joint and several trustees in bankruptcy of the Bankrupt's estate.[11]

   [11] Vines Affidavit [2] - [3], 'MDV-1'.

3. Prior to her bankruptcy, the Bankrupt and the defendant were the registered proprietors of the Property as joint tenants.[12]

   [12] Vines Affidavit [6] - [7], 'MDV-2'.

4. Following lodgment of the Transmission Application, the Property is now held by the Trustees and the defendant as tenants in common in equal shares.[13]

   [13] Vines Affidavit [8] - [12], 'MDV-3', 'MDV-4'.

5. On 29 April 2025, the Trustees commenced these proceedings by writ of summons indorsed with a statement of claim seeking orders for sale of the Property pursuant to s 126(1) of the Property Law Act.

6. Mr Vines has deposed, to his belief on behalf of the Trustees, that the defendant has no defence to the Trustees' claim.[14] The defendant has not filed any affidavit or other materials in opposition to the Application.

   [14] Vines Affidavit [18].

7. The Trustees seek summary judgment against the defendant and an order for sale pursuant to s 126(1) of the Property Law Act in lieu of partition, so that they may realise their vested interest in the Property for the benefit of the creditors of the Bankrupt's estate.

Applicable principles - s 126(1) of the Property Law Act

1. Section 126(1) of the Property Law Act provides:

   Where in an action for partition the party or parties interested, individually or collectively, to the extent of a half share or upwards in the land to which the action relates request the Court to direct a sale of the land and a distribution of the proceeds, instead of a division of the land between or among the parties interested, the Court shall, unless it sees good reason to the contrary, direct a sale accordingly.

2. Section 126(1) provides an alternative to partition of land. As the words of the section provide, where a party or parties have a half interest (or more), individually or collectively, in the land to which the action relates, they may seek an order of the court directing a sale of the land.[15]

   [15] See Bombara v Bombara [2010] WASC 314 [79] (Allanson J).

3. The purpose of s 126(1) and of the legislation preceding it is to provide a remedy for a co‑tenant who, in the event of a dispute with another co-tenant, may otherwise be without an adequate remedy to protect their share or interest in the property.[16]

   [16] Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635, 650 (Brennan J), 656 - 657 (Deane, Dawson & Gaudron JJ).

4. As observed by Master Sanderson in Trainor v Trainor,[17] s 126(1) does not embody a broad discretion on the Court to grant or refuse an order for sale. What the section anticipates is an order for sale or an order for partition of the land. There is no other alternative available. Unless the Court sees good reason to the contrary, it shall direct a sale.[18]

   [17] Trainor v Trainor [2021] WASC 40 [4] - [6].

   [18] Bombara v Bombara [79], referring to Bray v Bray [1926] HCA 40; (1926) 38 CLR 542, 545 (Knox CJ); Martin-Smith v Woodhead [1990] WAR 62, 69 - 70 (Kennedy J).

5. Order 53 r 3(1) RSC provides that where an order is made directing that land be sold, the Court may appoint a party or some other person to have conduct of the sale and permit that party to sell the land in such manner as they think fit. Order 53 r 4(1) RSC empowers the Court to give directions, as it thinks fit, for the purpose of effecting the sale.

6. The language of O 53 r 4(1) RSC is such, in my view, as to give the Court an unfettered discretion as to the directions it may give and the terms of the orders it may make upon ordering a sale of land, including pursuant to s 126(1) of the Property Law Act.

Determination

1. For the reasons given, leave should be and is granted to the plaintiffs to bring the Application out of time, the date for which is extended to the date of filing, 10 June 2025. I am also satisfied on the evidence before me, as outlined, that the Trustees have complied with the other procedural requirements for an application for summary judgment.

2. The Trustees, being tenants in common of one half share of the Property, have standing to bring this action under s 126(1) of the Property Law Act. I must make an order for sale of the Property, unless there is good reason to order partition. There is no evidence before me to suggest that the Property can be partitioned or that there is any good reason why it should be, and why I should not direct that it be sold.

3. In the circumstances, I am satisfied on the evidence that is before me, as outlined, that it is appropriate to order that summary judgment be entered for the plaintiff against the defendant, to make orders pursuant to s 126(1) of the Property Law Act directing that the Property be sold, and that the Trustees have conduct of the sale.

4. I am also satisfied that it is appropriate to make orders in relation to the appointment of a real estate agent, as to the method of sale and other orders to give effect to the sale and distribution of the proceeds of sale of the Property, as proposed.

5. I will hear from counsel for the plaintiff as to the form of the orders to be made.  The orders should also include that the defendant has liberty to apply within seven days of the date of the orders, in relation to the orders as to the conduct of the sale.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

SC

Associate to Master Russell

2 SEPTEMBER 2025