National Australia Bank Limited v Adam - [2025] WASC 265

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   NATIONAL AUSTRALIA BANK LIMITED -v- ADAM [2025] WASC 265
CORAM:   STRK J
HEARD:   30 JUNE 2025
DELIVERED          :   30 JUNE 2025
PUBLISHED           :   2 JULY 2025
FILE NO/S:   CIV 1010 of 2023
BETWEEN:   NATIONAL AUSTRALIA BANK LIMITED
Plaintiff
AND
MARK ALASDAIR ADAM
Defendant

Catchwords:

Equity - Injunction - Proceeding by lender against borrower for recovery of money and possession of properties mortgaged in favour of lender - Application for urgent interlocutory relief by the borrower - Proposed sale of a mortgaged property by borrower - Controversy as to whether the lender is entitled to the full net proceedings from the sale of the mortgaged property in light of a determination made by the Australian Financial Complaints Authority, which determination was accepted by the borrower - Application by the borrower to compel the lender to release one of three mortgaged properties from its registered mortgage for a lesser 'allocated' or 'proportional' amount of the net sale proceeds, and to restrain the lender from otherwise obstructing settlement on that basis - Settlement of the contract for sale delayed because of the controversy - Responsibility for penalty interest under the contract for sale of the mortgaged property - Whether the borrower has established a serious question to be tried - Balance of convenience - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 52

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	TE Strack
Defendant	:	In Person

Solicitors:

Plaintiff	:	Dentons Australia
Defendant	:	In Person

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

Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618
Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380
Carlton & United Breweries (NSW) Pty Ltd v Bond Brewing New South Wales Ltd (1987) 76 ALR 633
Cayne v Global Natural Resources Plc [1984] 1 All ER 225
Central Petroleum Ltd v Century Energy Services Pty Ltd [2011] WASC 211
Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533
Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105
NWL Ltd v Woods [1979] 3 All ER 614
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76; (2017) 55 WAR 36
Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110
Wellard Land Holdings (WA) Pty Ltd v Barker Mortgages Pty Ltd [2018] WASC 27

STRK J:

(This judgment was delivered extemporaneously on 30 June 2025 and has been edited from the transcript to correct infelicities of language and to incorporate headings, complete references and citations.)

Overview

National Australia Bank Limited (NAB) commenced a proceeding against Mark Alasdair Adam by a writ of summons filed on 6 January 2023, which writ was amended on 10 August 2023. In summary, NAB's claim is for repayment of money that remains owing to it by Mr Adam, and for possession of properties mortgaged by Mr Adam in favour of NAB.
After an order was made for substituted service, Mr Adam filed an appearance in the proceeding on 21 November 2023. While Mr Adam was for a period represented by a legal practitioner in the proceeding, he now appears in person. The proceeding has not substantively progressed. On nine occasions since November 2023, case management hearings were adjourned with the consent of both NAB and Mr Adam. No defence to NAB's claim has been filed.
On 26 June 2025 Mr Adam filed an interlocutory application for urgent relief in the proceeding. That application is supported by his affidavit affirmed on 24 June 2025, his further affidavit affirmed on 27 June 2025, and a certificate of urgency.
Mr Adams entered into a contract for the sale of one of the properties mortgaged in favour of NAB (that is, the property known as 52B Phoenix Road, Hamilton Hill) in respect of which NAB seeks in the proceeding an order for possession. The settlement date as provided for in that contract has passed.[1]
[1] First affidavit of MA Adam affirmed 24 June 2025, par 2.
Mr Adam complains that despite his attempts to repay NAB through the proceeds of sale, NAB has refused to facilitate settlement or discharge its mortgage over 52B Phoenix Road, Hamilton Hill, thereby blocking the sale.[2] In the papers filed in support of his application, Mr Adam proposed that NAB be paid 'the undisputed principal balance' from the sale proceeds (which Mr Adam says is $340,153.25), with any disputed amounts (such as interest, fees, or legal costs) to be held in trust, or paid into court, pending resolution.[3] In the course of the hearing Mr Adam informed the court that he did not seek such relief. Instead he sought relief that would have the remainder of the net proceeds of sale after NAB received $340,153.25 released to him.[4]
[2] First affidavit of MA Adam affirmed 24 June 2025, par 4.
[3] First affidavit of MA Adam affirmed 24 June 2025, par 8.
[4] ts 37 - 38 (30 June 2025).
Mr Adam says that he is in severe financial hardship, and the sale of 52B Phoenix Road, Hamilton Hill is necessary to satisfy debt obligations and prevent further loss, including default penalties and legal costs.[5] Mr Adam also deposes to having lodged a formal complaint with the Australian Financial Complaints Authority (AFCA) (case number 12-25-253338), which has not been resolved.[6]
[5] First affidavit of MA Adam affirmed 24 June 2025, par 7.
[6] First affidavit of MA Adam affirmed 24 June 2025, par 6.
Counsel for NAB confirmed that NAB was aware of a further complaint having been made by Mr Adan to AFCA, and counsel informed the court of her instructions that AFCA had given its consent to NAB to attend and oppose Mr Adam's application pursuant to AFCA's Complaint Resolution Scheme Rules.[7] On the undertaking of counsel to forthwith make and file in this proceeding an affidavit deposing to her instructions as to the grant of consent by AFCA, without opposition by Mr Adam, I heard counsel for NAB in opposition to the application.[8]

Orders sought by Mr Adam

[7] ts 14 - 16 (30 June 2025); Australian Financial Complaints Authority (AFCA) Complaint Resolution Scheme Rules (1 July 2024) pt A.7.

[8] ts 17 (30 June 2025).

In response to an enquiry made on behalf of the Registrar responsible for case managing the proceeding, in a communication to the court sent on 25 June 2025 Mr Adam confirmed that he urgently sought orders in the following terms:
1.… That the Respondent, National Australia Bank (NAB), take all necessary steps to allow settlement of the sale of 52B Phoenix Road, Hamilton Hill WA to proceed on or before Friday, 28th June 2025 or no later than Friday, 4th July 2025.
2.… That upon settlement:
(a)Net proceeds first be used to pay standard legal, settlement and sales costs (including agent commission and marketing expenses);
(b)The remaining proceeds be applied to the undisputed principal amount of the NAB mortgage (approx. $340,153.25), as calculated in the application (Minus Penalty Interest);
(c)The balance of funds be paid directly to the Applicant.
3.… That NAB be restrained from obstructing or interfering with the settlement, including refusal to discharge its mortgage, registered caveats, or land tax memorials.
4.… That NAB be held liable for the penalty interest accruing daily at $171.37 due to its conduct, as outlined in Exhibit MA-1.
5.… That the Court direct NAB not to obstruct future settlement of 52A Phoenix Road, and that NAB act proportionally and consistently with the AFCA Determination in releasing that security.
6.… That the application be listed on an urgent basis pursuant to O.67 r.5, due to the risk of significant prejudice to the Applicant if delayed.
7.… That costs be reserved.
No undertaking as to damages has been proffered by Mr Adam.

Controversy

The immediate controversy as between Mr Adam and NAB is whether NAB is entitled to the full net sale proceeds at settlement of the property known as 52B Phoenix Road, Hamilton Hill, to be applied in reduction of the money owed to NAB by Mr Adam (as is promoted by NAB), or a lesser 'allocated' or 'proportional' amount of the net sale proceeds (that is, $340,153.25), with the balance to be paid to Mr Adam (as is promoted by Mr Adam). By his application, among other things, Mr Adam seeks to compel NAB to release 52B Phoenix Road, Hamilton Hill from NAB's registered mortgage on the basis that it receive a lesser 'allocated' or 'proportional' amount of the net sale proceeds; have NAB meet any penalty interest payable to the purchaser under the contract for sale; and restrain NAB from otherwise obstructing settlement on that basis.
The application was listed on an urgent basis on 27 June 2025, and adjourned on the application of Mr Adam to 30 June 2025. The application was opposed by NAB, and the affidavit of Lucas Geoffrey Giles (a paralegal employed by Dentons, which firm acts on behalf of NAB) was read in opposition to the application. At the adjourned hearing of the application, on the undertaking provided by counsel for NAB, Mr Adam and NAB (through NAB's counsel) were heard.

NAB's pleaded claim

NAB's writ of summons was indorsed with a statement of claim. NAB's pleaded claim against Mr Adam may be summarised as follows.[9] (In these reasons, I adopt the capitalise terms as were defined in the pleading.)
[9] Amended writ of summons filed on 10 August 2023.
On 7 March 2014 NAB and Mr Adam entered into a written loan agreement (First Loan Agreement), pursuant to which:
(a)Mr Adam borrowed the sum of $468,000 (First Loan Amount) from NAB on account number 844795544 and agreed to repay the First Loan Amount to NAB in accordance with the terms and conditions of the First Loan Agreement;
(b)Mr Adam secured repayment of all money payable under the First Loan Agreement by a first registered mortgage over three properties owned by Mr Adam in favour of NAB registered on the titles of the properties on 20 May 2014 and bearing number M642256 (Mortgage); and
(c)on or about 20 May 2014 NAB advanced the First Loan Amount to Mr Adam.
On or about 9 September 2015 NAB and Mr Adam entered into a further written loan agreement (Second Loan Agreement), pursuant to which:
(a)Mr Adam borrowed the sum of $700,000 (Second Loan Amount) from NAB on account number 789499856 and agreed to repay the Second Loan Amount to NAB in accordance with the terms and conditions of the Second Loan Agreement;
(b)Mr Adam secured repayment of all money payable under the Second Loan Agreement by the Mortgage; and
(c)on or about 9 September 2015 NAB advanced the Second Loan Amount to Mr Adam.
The three properties owned by Mr Adam which were mortgaged in favour of NAB (together, the Mortgaged Properties) were as follows:
(a)52 Phoenix Road, Hamilton Hill (more particularly described as: Lot 1 on Strata Plan 67382 and being the whole of the land comprised in Certificate of Title volume 2909 folio 204);
(b)52A Phoenix Road, Hamilton Hill (more particularly described as: Lot 2 on Strata Plan 67382 and being the whole of the land comprised in Certificate of Title volume 2909 folio 205); and
(c)52B Phoenix Road, Hamilton Hill (more particularly described as: Lot 3 on Strata Plan 67382 and being the whole of the land comprised in Certificate of Title volume 2909 folio 206).
(In the affidavit of Mr Giles read by NAB, it was explained that when the First Loan Agreement and Second Loan Agreement were made, the Mortgage was in fact over 52 Phoenix Road, Hamilton Hill (more particularly described as the whole of the land comprised in Certificate of Title volume 2909 folio 206); and on 28 August 2016 that 'Parent Title' was subdivided and Mr Adam became the registered proprietor of the three Mortgaged Properties.[10])
[10] Affidavit of LG Giles sworn 26 June 2025, pars 4 - 6, 11.
NAB pleads that the First Loan Agreement and the Second Loan Agreement (Loan Agreements) and the Mortgage incorporated by reference NAB's Facility Agreement General Terms, and the Memorandum of Common Provisions registered number L659783 (Memorandum of Provisions). It is further pleaded that the Memorandum of Provisions states that:
(a)Mr Adam would be in default if he did not pay any of the amounts owing under the Loan Agreements when due;
(b)if Mr Adam was in default NAB may issue Mr Adam with a notice specifying the default and providing a period of time within which the default may be rectified; and
(c)if the notice was not complied with then the whole of the amount owing under the Loan Agreements and the Mortgage would become payable on demand, and if NAB demands payment of the whole of the amount owing but it is not paid within 7 days then NAB may enforce the Mortgage by suing Mr Adam for the amount owing and take possession of the Mortgaged Properties.
NAB pleads that as at 31 January 2018 Mr Adam was in default of his payment obligations under the First Loan Agreement and the Second Loan Agreement, and was therefore also in default of the Mortgage. Mr Adam was issued with a notice of default dated 31 January 2018 by which he was given notice that he was in default, and that if the defaults were not rectified within the time specified in the notice the whole of the amount owing pursuant to the Loan Agreements would become immediately due and payable and NAB would commence enforcement proceedings. NAB pleads that Mr Adam failed to rectify the defaults within the time prescribed in the notice.
NAB further pleads that by a determination made by AFCA on 23 June 2021 and accepted by Mr Adam:
(a)the amount owing under the Loan Agreements was fixed at $1,169,915 (Fixed Debt), being:
(i)$472,646 under the First Loan Agreement; and
(ii)$697,269 under the Second Loan Agreement; and
(b)Mr Adam was given six months to repay the Fixed Debt to NAB failing which he must surrender the Mortgaged Properties to NAB to be sold in accordance with NAB's rights under the Mortgage.
In circumstances where Mr Adam did not pay the Fixed Debt within six months and had not surrendered the Mortgaged Properties to NAB, NAB claims that the Fixed Debt is immediately due and payable to NAB; and that NAB is entitled to possession of the Mortgaged Properties. By the proceeding, NAB claims as against Mr Adam the balance of the Fixed Debt that remains owing as at the date of judgment; possession of the Mortgaged Properties; and costs.

Further background

In his interlocutory application Mr Adam referred to a number of documents that he described as exhibits. Attached to Mr Adam's second affidavit were a number of documents. From the affidavits of Mr Adams, read with the affidavit of Mr Giles, I also understand as follows.

AFCA determination

Mr Adam made a complaint to AFCA in relation to the Loan Agreements.[11] On 23 June 2021 AFCA issued a determination with respect to Mr Adam's complaint (the Determination), which AFCA recorded was about whether NAB:[12]
(a)breached its responsible lending obligations when it entered into the loan contracts for the First Loan Agreement and the Second Loan Agreement;
(b)breached any obligation to Mr Adam when it declined his request to use the surplus funds available in the Second Loan Agreement for out of pocket costs;
(c)breached any obligation to Mr Adam when NAB used the surplus funds to pay the loan repayments between February 2017 and January 2018; and
(d)met its obligations to Mr Adam as a customer in financial difficulty.
[11] Affidavit of LG Giles sworn 26 June 2025, par 14. Mr Adam's complaint to AFCA was allocated case number 664139.
[12] Affidavit of LG Giles sworn 26 June 2025, par 15, LGG5; second affidavit of MA Adam affirmed 27 June 2025, MA-2.
AFCA's Determination was substantially in favour of Mr Adam, having calculated Mr Adam's net loss from the unsuitable loans and having provided for a revised debt in the total amount of $1,169,915. It was determined by AFCA that:[13]
[13] Affidavit of LG Giles sworn 26 June 2025, LGG5 (pages 85 - 86); second affidavit of MA Adam affirmed 27 June 2025, MA-2 (pages 6 - 7).
If the complainant accepts this determination within 30 days, then within 14 days of that acceptance, the bank must reduce the loan balances as follows:
• loan 1 to be reduced to $472,646
• loan 2 to be reduced to $697,269 (the revised debts)
The bank must also cease charging fees and interest on the revised debts.
The bank should also apply any repayments the complainant has made since 31 March 2021 to further reduce the revised debts.
The complainant must repay the revised debts within 6 months of his acceptance of this determination by refinancing the revised debts or selling the property. If he wishes, the complainant may surrender the property to the bank during this period to enable the bank to sell the property as mortgagee in possession.
If the complainant has not repaid the revised debts or presented the bank with a signed contract of sale for the property within 6 months of his acceptance of this determination, the complainant must surrender the property to the bank and the bank must sell the property as mortgagee in possession.
The bank must pay the reasonable sale costs associated with sale of the property, including agents' fees and marketing costs. If the complainant sells the property, the bank must reimburse him for these costs.
If the sale price of the property is not sufficient to repay the revised debts, the complainant may provide the bank a statement of financial position within 14 days of being notified by the bank of the shortfall amount. The parties should work together towards a repayment arrangement that will enable the shortfall debt to be repaid within a reasonable time.
The bank's actions have contributed to complainant's stress and inconvenience. It is appropriate for the bank to compensate the complainant for this non-financial loss. If the complainant accepts this determination, the bank must reduce the outstanding balance of loan 1 by a further $3,000.
If the complainant does not accept this determination, the bank is not required to take any of the above steps.
By a letter dated 26 July 2021 NAB was informed by AFCA that the Determination had been accepted by Mr Adam.[14]
[14] Affidavit of LG Giles sworn 26 June 2025, LGG6 (page 102).
I understand that Mr Adam did not repay the revised debts (described as the Fixed Debt in NAB's pleading) within six months of acceptance of the Determination, and on 25 February 2022 Dentons on behalf of NAB gave notice to Mr Adam that if he did not surrender vacant possession or repay NAB the revised debts in full by 4 March 2022, NAB may proceed with further enforcement action in accordance with its rights under the Loan Agreements and the Mortgage.[15]
[15] Affidavit of LG Giles sworn 26 June 2025, LGG7 (page 104).
The proceeding was commenced by NAB against Mr Adam in January 2023, seeking as against Mr Adam to recover the balance of the Fixed Debt that remains owing as at the date of judgment; possession of the Mortgaged Properties; and costs.
On 8 April 2025 Dentons (on behalf of NAB) wrote to Mr Adam's former legal representative and confirmed that in circumstances where forbearance terms could not be formally agreed, Dentons was instructed to progress the proceeding towards an application for summary judgment in the proceeding.[16]

Contract for sale for 52B Phoenix Road, Hamilton Hill

[16] Affidavit of LG Giles sworn 26 June 2025, LGG8 (page 131). Attached to the second affidavit of MA Adam affirmed 27 June 2025 at MA‑7 is a bundle of documents which includes a copy of a draft deed of forbearance and release prepared by Dentons.

On 25 April 2025 Mr Adam accepted an offer made to purchase 52B Phoenix Road, Hamilton Hill for $705,000, subject to finance approval and which offer provided for the payment of a deposit in the amount of $10,000. The contract for sale provided that the settlement date would be within 21 days of unconditional finance approval.[17] On 28 April 2025 Mr Adam advised NAB of the same.[18]
[17] Second affidavit of MA Adam affirmed 27 June 2025, MA-6 (pages 61 - 82).
[18] Affidavit of LG Giles sworn 26 June 2025, LGG8 (page 125).

On 2 May 2025 Mr Adam made the following enquiry of NAB:[19]
I am waiting on my settlement agent to get back to me regarding the exact amounts I owe for outstanding rates, water, land tax …
I also need some clarification on the amount owed to NAB for the property at 52B before we consider the above and other sales expenses etc …
The AFCA determination states $1,169,915.00 is owed across all three properties so the amount outstanding for 52B is $389,971.66
Obviously my intent is to clear the whole debt once 52A is sold, so depending on the sale price I may have to deposit a bit extra from my end but it would be very minimal.

Settlement statement dated 20 June 2025

[19] Affidavit of LG Giles sworn 26 June 2025, LGG8 (page 123).

The parties agreed that the court ought have before it a draft settlement statement dated 20 June 2025 prepared by Collective Conveyancing, and the attached itemised tax invoice for the 'Professional Service Fee and Charges' (which was an item of that draft statement). A copy of the draft settlement statement and itemised tax invoice had been filed in the proceeding by Mr Adam on 26 June 2025. Among other things the draft settlement statement recorded as follows:

Counsel for NAB noted that (subject to any appropriate adjustments), the net proceeds of sale to be recovered by NAB at settlement would be the sum of $656,494.01.[20]

Repayments made since 31 March 2021

[20] ts 21 (30 June 2025).

I understand that Mr Adam also complains that he has requested but not received a breakdown of all repayment amounts made by him to NAB since 31 March 2021, and confirmation that they amounts have been credited in full to the moneys owed to NAB.[21] With respect to the same, by reference to bank statements attached to Mr Adam's second affidavit, it is NAB's position that no moneys were accepted by NAB and credited against the revised debt since 31 March 2021.[22] Further, given that the revised debt exceeds $1 million, adjustment for the alleged payment of $23,613.72 to NAB by Mr Adam will not impact the amount payable to NAB at settlement of 52B Phoenix Road, Hamilton Hill.[23]

Mr Adam's position as to money to be paid to NAB at settlement

[21] Second affidavit of MA Adam affirmed 27 June 2025, MA-3 (page 23).

[22] Second affidavit of MA Adam affirmed 27 June 2025, MA-8; ts 21 - 22 (30 June 2025).

[23] Second affidavit of MA Adam affirmed 27 June 2025, MA-8 (page 116); ts 22 (30 June 2025).

It is Mr Adam's position that AFCA recognised the debt of $1,169,915 as being spread across the three strata titled properties (52, 52A, and 52B Phoenix Road, Hamilton Hill). He submitted that references to 'the property' in the Determination supported his position.[24]
[24] ts 31 (30 June 2025); Mr Adam referred to references to 'the property' in that part of AFCA's Determination reproduced at [22] of these reasons.
Mr Adam maintains that in good faith, he has proposed a reasonable apportionment of $389,971.66 (minus reasonable sales costs as per the Determination by AFCA) in favour of NAB at settlement of the sale of 52B Phoenix Road, Hamilton Hill; and denies that NAB is entitled to recover its full debt (or more than one third of the revised debt) from the sale of a single property.
Among other things, Mr Adam has asserted that NAB's insistence on recovering the full debt (or more than one third of the revised debt) from the sale of a single property amounts to unconscionable conduct under s 12CB of the Australian Securities and Investments Commission Act 2001 (Cth) (which section concerns unconscionable conduct in connection with financial services).[25]
[25] Second affidavit of MA Adam affirmed 27 June 2025, MA-3 (page 23).
Mr Adam attached to his second affidavit a document dated 27 March 2025 signed by Dr Susan Iland, in which Dr Iland certifies that she is Mr Adam's long term general practitioner, and that Mr Adam has been unfit for work since 22 April 2022.[26]
[26] Second affidavit of MA Adam affirmed 27 June 2025, MA-5 (page 60).
Mr Adam also says that he has a hardship claim that NAB has refused to meaningfully assess.[27] He attached to his second affidavit documents described as 'evidencing [his] ongoing financial hardship, including correspondence from various financial institutions'.[28] I understand Mr Adam does not press for any part of the net proceeds of sale to be paid into court, but rather released to him so that he may attend to paying some of his other debtors.[29]

NAB's position

[27] Second affidavit of MA Adam affirmed 27 June 2025, MA-3 (page 23).

[28] Second affidavit of MA Adam affirmed 27 June 2025, MA-9.

[29] ts 37 - 38 (30 June 2025).

Dentons informed Mr Adam of NAB's position with respect to the proposed settlement of the sale of 52B Phoenix Road, Hamilton Hill, including by emails sent to Mr Adam on 15 May 2025, 26 May 2025, 3 June 2025, 5 June 2025 and 17 June 2025.[30]
[30] Affidavit of LG Giles sworn 26 June 2025, par 23, LGG8.
NAB maintains that the revised debt is secured by its Mortgage against the Mortgaged Properties; it is entitled to the full net proceeds from the sale of 52B Phoenix Road, Hamilton Hill; and it will not release 52B Phoenix Road, Hamilton Hill from its Mortgage on any other basis.
I do not understand NAB to object to meeting the reasonable sale costs associated with sale of the property, including agents' fees and marketing costs, or reimbursing Mr Adam for the same (as required by the Determination).
NAB maintains that the application made by Mr Adam ought be refused in circumstances where he seeks 'interlocutory' relief but has not filed a defence or counterclaim in the proceeding and has given no indication of having the intention to do so; has not shown a prima facie case for relief; and the balance of convenience does not favour relief. NAB further complains that the orders sought are in fact final orders, particularly the relief sought with respect to penalty interest.[31]

Interest Notice under the contract for sale

[31] Described at [41] and [42] of these reasons.

On 17 June 2025 the purchaser of 52B Phoenix Road, Hamilton Hill gave Mr Adam notice that settlement was due on that date; that the purchaser is ready, willing and able to settle; and that the purchaser reserves the right to claim penalty interest under the contract for sale, with a daily rate of $171.37.[32]
[32] Second affidavit of MA Adam affirmed 27 June 2025, MA-1 (page 3).
By his application, Mr Adam also seeks that 'NAB be held liable for the penalty interest accruing daily at $171.37 due to its conduct.'

Disposition

By an interlocutory application made in the action commenced against him by NAB, Mr Adams seeks:
(a)to positively compel NAB to release one of the Mortgaged Properties (that is, 52B Phoenix Road, Hamilton Hill) from its security so that settlement of the contract for sale may proceed on terms that he promotes but NAB considers to be a compromise of its rights as the holder of a registered mortgage;
(b)to restrain NAB from 'obstructing or interfering with the settlement, including refusal to discharge its mortgage, registered caveats, or land tax memorials';
(c)judgment in his favour in relation to the penalty interest that may have accrued and be payable under the contract for sale for 52B Phoenix Road, Hamilton Hill; and
(d)to restrain NAB from obstructing future settlement of 52A Phoenix Road, Hamilton Hill and to compel NAB to again 'act proportionally and consistently with the AFCA Determination in releasing that security' (that is, release another of the Mortgaged Properties from its security so that settlement of another contract for sale may proceed on terms that Mr Adam promotes but NAB considers to be a compromise of its rights as the holder of a registered mortgage).
The relief is sought by Mr Adam before a trial of NAB's action against Mr Adam; before any defence to NAB's pleaded claim has been filed; and before any counterclaim has been filed. In appropriate circumstances, the court will grant interlocutory relief on the condition that a proceeding is commenced or a counterclaim filed within a period fixed by the court. I did not consider the fact that no counterclaim had been filed (or in the absence of evidence of an intention on the part of Mr Adam to file a counterclaim) of itself to be determinative of the application.
However, of greater concern was that while cast as interlocutory, Mr Adam's application in fact seeks final prohibitory and mandatory injunctive relief, and judgment with respect to penalty interest that may have accrued and be payable under the contract for sale for 52B Phoenix Road, Hamilton Hill. The practical impact of the grant of relief as promoted by Mr Adam would be that NAB's action against Mr Adam for possession of the Mortgaged Properties would, with respect to two of them (52A and 52B Phoenix Road, Hamilton Hill), in effect be stayed if not determined against NAB.
The principles governing the grant of interlocutory injunctive relief are well established, and were summarised by Beech J in Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 [7] ‑ [13], Newnes JA (with whom McLure P and Corboy J agreed) in Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 [87], and the Court of Appeal in Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76; (2017) 55 WAR 36 [130] ‑ [131].
In short, it is necessary for the applicant for relief to show that there exists a serious question to be tried, or a prima facie case, and that the balance of convenience favours the grant of an injunction.
Where a party seeks a mandatory injunction, no more stringent or different legal test is to be applied than that which is applicable in seeking a prohibitory injunction.[33] Ultimately, the question is as to the balance of the risk of injustice, and in considering that balance the court must take into account the nature and consequences of the particular injunction sought.[34]

Serious question to be tried

[33] Mineralogy Pty Ltd v Sino Iron Pty Ltd [76] - [86].

[34] Twinside Pty Ltd v Venetian Nominees Pty Ltd [12]; Wellard Land Holdings (WA) Pty Ltd v Barker Mortgages Pty Ltd [2018] WASC 27 [9].

I now turn to the consideration of whether or not there is a serious question to be tried in relation to Mr Adam's claim on the basis of the papers filed in support of his application (noting that his claim has not been pleaded in this proceeding).
While Mr Adam deposed to having lodged a further formal complaint with AFCA, a copy of that complaint is not before the court. If there was information or documents provided to AFCA beyond that now relied upon by Mr Adam for the purpose of this application, that was not revealed in his affidavits. Mr Adam simply deposed to having made a further complaint and that it 'remains ongoing'.[35] In the course of the hearing, Mr Adam informed the court that his further complaint to AFCA was almost identical to his interlocutory application.[36]
[35] First affidavit of MA Adam affirmed 24 June 2025, par 6.
[36] ts 13 (30 June 2025).
Where an applicant seeks an interlocutory injunction, the applicant must identify the legal or equitable rights which are said to be determined at the trial and in respect of which the final relief is sought. The power to grant an interlocutory injunction is not to be exercised by reference to unconstrained notions of what appears to be just; it must be exercised by reference to the rights claimed by the applicant in the proceeding.[37]
[37] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2], citing Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380 [32].
I understood Mr Adam to complain that NAB proposed to act in a manner contrary to the Determination (to which NAB was bound), as AFCA had recognised the revised debt of $1,169,915 as being spread across the three strata titled properties (52, 52A, and 52B Phoenix Road, Hamilton Hill). Mr Adam submitted that references to 'the property' in the Determination supported his position.[38]
[38] ts 31 (30 June 2025); Mr Adam referred to references to 'the property' in that part of AFCA's Determination reproduced at [22] of these reasons.
As to the terms of the Determination, I note Mr Adam also appeared to accept that it was not expressly recorded in the Determination that the revised debt of $1,169,915 was to be 'spread across' the three strata titled properties (52, 52A, and 52B Phoenix Road, Hamilton Hill) (that is, so that each property was mortgaged to secure only one third of the revised debt).[39] Further, contrary to his preferred reading of the Determination, it was clear that Mr Adam hoped not to have to sell all three properties so as to repay NAB.[40]
[39] ts 12 (30 June 2025).
[40] ts 12 - 13 (30 June 2025).
Mr Adam complains that the position adopted by NAB 'indicate[s] that its conduct is either strategically punitive, malicious, or designed to exert improper leverage rather than recover money' (as asserted by Mr Adam in his interlocutory process); and 'raises serious concerns as to NAB's compliance with its obligations under consumer law, credit law and the Banking Code of Practice' (again, as asserted by Mr Adam in his interlocutory process).
He particularly complains that NAB had not acted in accordance with its duty to act in good faith in that it would not agree to forbear from prosecuting this proceeding without a release in its favour as proposed by NAB in a draft deed of forbearance and release, and in that NAB had not given due consideration to Mr Adam's personal circumstances and financial position. I understand that Mr Adam has other (unsecured) debts and seeks to repay or reduce them with some of the proceeds of the sale of 52B Phoenix Road, Hamilton Hill (which property is mortgaged in favour of NAB).
Mr Adam mortgaged in favour of NAB the Mortgaged Properties. As is pleaded by NAB, the Mortgage incorporated by reference the terms contained in the Memorandum of Provisions.
The Memorandum of Provisions makes plain that the Mortgage is an 'all moneys' mortgage. That is, it secures repayment of the 'Amount Owing', which term is defined to include at any time, all amounts:[41]
(a)which at the time NAB has advanced or paid to Mr Adam;
(b)for which at that time Mr Adam is or may become actually liable to NAB for any reason;
(c)which at that time are owing and unpaid by Mr Adam for any reason; and
(d)which at that time NAB is entitled to recover or claim from Mr Adam for any reason.
[41] Affidavit of LG Giles sworn 26 June 2025, LGG3 (page 77, ('Key words' defined)).
The Memorandum of Provisions also provides that Mr Adam may require NAB to release the land from the Mortgage when there is no 'Amount Owing'.[42] There however remain 'Amounts Owing' to NAB.
[42] Affidavit of LG Giles sworn 26 June 2025, LGG3 (page 66, cl 2.1 ('About this mortgage')).
Mr Adam did not repay the revised debts within six months, nor did he present NAB with a signed contract for sale of the property within six months of his acceptance of the Determination. The Determination provides that Mr Adam is (in such circumstances) obliged to surrender the Mortgaged Properties to NAB, and NAB must sell them as mortgagee in possession. The Determination provided for a reduction in the amounts owed to NAB, and curtailed certain rights held by NAB under the Loan Agreements and Mortgage (including NAB's right to charge and recover fees and interest pursuant to those agreements).
It would appear that Mr Adam seeks to further rewrite or curtail the terms of NAB's security by construing the Determination as providing for the same. The Determination is clear in its terms. It was accepted by Mr Adam. The Determination does not provide for the limitation promoted by Mr Adam. Further, NAB's asserted position does not on the evidence before the court 'indicate that its conduct is either strategically punitive, malicious, or designed to exert improper leverage rather than recover money' (as asserted by Mr Adam in his interlocutory process). Nor is there an evidentiary basis to ground Mr Adam's assertion that NAB's position 'raises serious concerns as to NAB's compliance with its obligations under consumer law, credit law and the Banking Code of Practice' (again, as asserted by Mr Adam in his interlocutory process), grounded upon unconscionable or misleading conduct, or the asserted overriding duty of NAB to act in good faith.
Further, I do not consider there to be a prima facie case against NAB grounded on the promotion by NAB of a deed of forbearance that included mutual releases;[43] nor by reason of the hardship considerations advanced. There was no discernible prima facie case against NAB for its refusal to release registered security so as to allow unsecured creditors of Mr Adam to be paid from the proceeds of sale of a mortgaged property when all 'Amounts Owing' to NAB had not been paid.
[43] Second affidavit of MA Adam affirmed 27 June 2025, MA-7 (page 103).
While I do not intend to express any final or conclusive views as to Mr Adam's claim against NAB, for the purpose of the application before me, I am not satisfied to the requisite standard that Mr Adam had made out a prima facie case.

Balance of convenience

For completeness I note that the requisite strength of the prima facie case and the balance of convenience are not independent considerations. The more the balance of convenience supports the respondent, and the more serious the consequences for a respondent, the stronger will be the prima facie case the applicant may need to establish to support an interlocutory injunction. Conversely, in a case where the balance of convenience strongly favours the applicant, then the strength of the prima facie case required to support the interlocutory injunction diminishes.
Although the court will often examine the strength of a case for an interlocutory injunction, the court will not normally undertake a preliminary trial and will rarely attempt to resolve disputes of fact.[44] The extent to which the court will consider the merits of disputes as to legal issues will depend on the circumstances of the case. There is no inflexible rule in this regard.
[44] Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618, 622.
The grant of an injunction involves balancing the injustice which might be suffered by the defendant if the injunction is granted but the plaintiff later fails at trial, against the injustice which might be suffered by the plaintiff if the injunction is not granted and plaintiff later succeeds at trial.
Further, the practical impact of the grant of relief should be considered.[45] The degree of likelihood that the plaintiff will succeed becomes a significant factor when the practical impact of the grant of an interlocutory injunction is that the litigation is effectively determined, and should be brought into the balance in weighing the risk that injustice may be done in deciding the application one way rather than another.[46] It is then desirable to evaluate the strength of the plaintiff's case for final relief.[47] Unless the case is so strong that it would be a waste of time and expense to let the action go to trial, an injunction should be refused because to deprive the defendant of a trial is, in general terms, injustice.[48]
[45] LexisNexis, Civil Procedure - Western Australia (at 30 June 2025) [52.1.8]; Carlton & United Breweries (NSW) Pty Ltd v Bond Brewing New South Wales Ltd (1987) 76 ALR 633, 639.
[46] LexisNexis, Civil Procedure - Western Australia (at 30 June 2025) [52.1.8]; NWL Ltd v Woods [1979] 3 All ER 614, 626.
[47] LexisNexis, Civil Procedure - Western Australia (at 30 June 2025) [52.1.8]; Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533, 536. See also Central Petroleum Ltd v Century Energy Services Pty Ltd [2011] WASC 211 [70] ‑ [73].
[48] LexisNexis, Civil Procedure - Western Australia (at 30 June 2025) [52.1.8]; Cayne v Global Natural Resources Plc [1984] 1 All ER 225, 238.

I proceed on the basis that the same considerations apply when considering the impact of the grant of injunctive relief when promoted by a defendant to an action who brings or seeks to bring a counterclaim.
As to the balance of convenience, on the evidence before me I was not satisfied that it favoured the grant of the relief sought. NAB was granted the Mortgage in its favour. There would be significant detriment to NAB to compel it to release a property from its registered security on terms less than that security provides, without an undertaking as to damages, or comfort that its indebtedness will be met from the remaining security or Mr Adam personally (who says that he is unfit for work and has not worked for several years). This is not a case where Mr Adam's case is so strong that it would be a waste of time and expense to let the action go to trial. Nor is the risk and detriment of penalty interest under the contract for sale sufficient to have tipped the balance (had I found Mr Adam to have made out a prima facie case).

Conclusion and orders

On the basis that AFCA had provided its consent to NAB to oppose Mr Adam's application despite rule A.7.1 of the AFCA Complaint Resolution Scheme Rules dated 1 July 2024, and that NAB's counsel would forthwith make and file in this proceeding an affidavit deposing to her instructions as to the grant of consent, Mr Adam's application was heard on a defended basis. For these reasons, the application was dismissed.
After hearing Mr Adam and NAB as to costs, I concluded that it was appropriate that costs follow the event. Having had regard to the papers filed in advance of the hearing on behalf of NAB, the duration of the hearing, the maximum hourly rate of a senior practitioner by reference to the applicable determination of the Legal Costs Committee, and the schedule of standard costs orders for interlocutory applications in PD 4.7.1.1 of the Supreme Court of Western Australia Consolidated Practice Direction, it was ordered that the costs of the defendant's application be fixed in the amount of $3,144, payable by Mr Adam to NAB.
In so concluding, I noted that the quantum was fixed by approximating, by and large, those that might be determined on taxation.[49] I also proceeded on the basis that the financial position of Mr Adam was not a reason to deprive NAB, the successful party, of costs.[50]
[49] Supreme Court of Western Australia Consolidated Practice Direction PD 4.7.1 par 10.
[50] LexisNexis, Civil Procedure - Western Australia (at 30 June 2025) [66.1.8].

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CR
Associate to the Hon Justice Strk
2 JULY 2025