National Australia Bank Limited v Jackson - [2025] WASC 8

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   NATIONAL AUSTRALIA BANK LIMITED -v- JACKSON [2025] WASC 8
CORAM:   MASTER RUSSELL
HEARD:   11 & 30 APRIL 2024
DELIVERED          :   14 JANUARY 2025
FILE NO/S:   CIV 2150 of 2023
BETWEEN:   NATIONAL AUSTRALIA BANK LIMITED
Plaintiff
AND
KEITH EDWARD STANSMORE JACKSON
First Defendant
DONALD MERVYN JACKSON
Second Defendant
HUGH FRANCIS JACKSON
Third Defendant
THE ESTATE OF GARRY JAMES JACKSON
Fourth Defendant
SANDRA GAIL JACKSON
Fifth Defendant
SHERRIL ANNE JACKSON
Sixth Defendant

Catchwords:

Practice and procedure - Summary judgment - Order 14 Rules of the Supreme Court 1971 (WA) - Mortgage action - Plaintiff's application for monetary judgment and possession of property - Turns on own facts

Practice and procedure - Summary judgment - Order 16 Rules of the Supreme Court 1971 (WA) - Application by defendant to counterclaim for summary judgment - Summary dismissal of counterclaim - Turns on own facts

Practice and procedure - Strike out application - Application to strike out counterclaim - Order 20 rule 19 Rules of the Supreme Court 1971 (WA) - Turns on own facts

Limitation of actions - Limitation period - Action in deceit - Action in fraud - Action in unjust enrichment - Limitation Act 1935 (WA) - Limitation Act 2005 (WA) - Application of statutory limitation periods by analogy in equity - Turns on own facts

Legislation:

Limitation Act 1935 (WA), s 33(1)(c)(v), s 38(1)(c)(vi), s 38(1)(c)(vii), s 38(1)(e)(i)
Limitation Act 2005 (WA), s 2, s 4, s 13(1), s 18, s 27
Rules of the Supreme Court 1971 (WA), O 14, O 14 r 1, O 14 r 1(1), O 14 r 2(1), O 16, O 16 r 1, O 16 r 1(1), O 16 r 1(2), O 16 r 2(1), O 20 r 19, O 20 r 19(1)(a), O 20 r 19(2)

Result:

Applications granted
Summary judgment entered for the plaintiff pursuant to O 14
Order for possession of mortgaged property
Summary judgment for plaintiff pursuant to O 16

Counterclaim summarily dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	Ms R R Joseph
First Defendant	:	In Person
Second Defendant	:	In Person
Third Defendant	:	In Person
Fourth Defendant	:	In Person (Mr L N Jackson as executor of the estate of Garry James Jackson)
Fifth Defendant	:	In Person
Sixth Defendant	:	In Person

Solicitors:

Plaintiff	:	Norton Rose Fulbright Australia
First Defendant	:	In Person
Second Defendant	:	In Person
Third Defendant	:	In Person
Fourth Defendant	:	In Person (Mr L N Jackson as executor of the estate of Garry James Jackson)
Fifth Defendant	:	In Person
Sixth Defendant	:	In Person

Cases referred to in decision(s):

Amott v Holden (1852) 18 QB 593; 118 ER 224
Bankwest (a division of CBA) v Mann [2015] WASC 187
Barker v Duke Group Ltd (in liq) [2005] SASC 81
Barton v Armstrong [1976] AC 104
Cologna Investments Pty Ltd as trustee for the P. and D. Panizza Family Trust v Caranna [2023] WASC 368
Connell v Australia and New Zealand Banking Group Limited [2023] WASCA 48
Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40
Deputy Commissioner of Taxation v Lafferty [2017] WASC 257
Dewar v Ollier [2018] WASC 212
Dewar v Ollier [2020] WASCA 25
Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234
Electricity Generation Corporation t/as Verve Energy v Woodside Energy [2013] WASCA 36
English v Vantage Holdings Group Pty Ltd [2021] WASCA 47
Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; (2009) 76 NSWLR 603
Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458
GEL Custodians Pty Ltd v Dewar [2014] WASC 177
Gerace v Auzhair Supplies Pty Ltd [2014] NSWCA 181; (2014) 87 NSWLR 435
Gerovich v Maxwell John Gerovich as executor of the estate of Anthony Gerovich [2018] WASC 153
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Goh v First Industries Corp [2002] WASCA 341
Hawkins v Clayton (1988) 164 CLR 539
Helmers v Como [2014] WASC 394
HSBC Bank Australia Ltd v Mavaddat [2015] WASC 153
Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338
In de Braekt v Powell [2007] WASCA 55; (2007) 33 WAR 389
Knights Capital Group Ltd v Bajada and Associates Pty Ltd [2016] WASC 69
Lachlan v HP Mercantile Pty Ltd [2015] NSWCA 130; (2015) 89 NSWLR 198
Letang v Cooper [1964] 3 WLR 573; [1964] 2 All ER 929 (CA); [1965] 1 QB 232
Lewis Securities Ltd (in liq) v Carter [2018] NSWCA 118
Lovell v The Western Australian Police Union of Workers [2004] WASC 19
Lovell v Western Australian Police Union of Workers [2009] WASCA 34
McKay v National Australia Bank Ltd [1998] 4 VR 677
Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 11) [2016] WASC 235
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
Morgan v Pallister [2004] WASC 188
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109
Motor Terms Co Pty Ltd v Liberty Insurance Ltd (in liq) (1967) 116 CLR 177
MTI v SUL [No 2] [2010] WASCA 58
National Australia Bank Ltd v Taylor [2003] WASC 240
NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107
Pearson v Connor [2024] WASCA 49
Permanent Custodians Limited v Shannon (No 2) [2018] WASC 295
Pisano v South Metropolitan Health Service [2023] WASCA 80
Re Rules of the Supreme Court 1971 (WA); ex parte Gates [2018] WASC 213
Schwartz v Hadid [2013] NSWCA 89
Sheldon v McBeath (1993) Aust Tort Reports 81 - 209
Sims v Commonwealth of Australia [2022] NSWCA 194
Smart v Prisoner Review Board (WA) [2012] WASC 48
Spoor v Green (1874) LR 9 Ex 99
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
Sze Tu v Lowe [2014] NSWCA 462; (2014) 89 NSWLR 317
The Commonwealth v Mewitt [1997] HCA 29; (1997) 191 CLR 471
The Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394
The Millstream Pty Ltd v Schultz [1980] 1 NSWLR 547
Turner v Moon [1901] 2 Ch 825
Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398
WA Country Builders Pty Ltd v Premium Coastal Property Pty Ltd [2012] WASC 236
Wallingford v Mutual Society (1880) 5 App Cas 685, 704
Wardley Australia Limited v The State of Western Australia [1992] HCA 55; (1992) 175 CLR 514
Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Westpac Banking Corp v Ninan [2014] WASC 456
Westpac Banking Corporation v Anderson [2017] WASC 106
Westwind Air Charter Pty Ltd v Hawker De Havilland Ltd (1990) 3 WAR 71
Wright v Lemon [2024] WASCA 19
Wright v Wright [2002] WASC 30
Young v National Australia Bank Ltd [2004] WASCA 298; (2004) 29 WAR 505
Young v Waterways Authority of New South Wales [2002] NSWSC 612

MASTER RUSSELL:

Introduction

The first, second and third defendants, Keith Edward Stansmore Jackson, Donald Mervyn Jackson and Hugh Francis Jackson, are the registered proprietors, as joint tenants, of:
(a)Lot 8669 on Deposited Plan 201627 being the whole of the land described in Certificate of Title Volume 1986 Folio 76; and
(b)Lot 8678 on Deposited Plan 201627 being the whole of the land described in Certificate of Title Volume 1986 Folio 78,
(together, the Property).[1]
[1] Affidavit of Jeffrey David Pontifex affirmed on 16 November 2023 (First Pontifex Affidavit) [13] - [14], 'JDP-6'.
The other defendants in this proceeding are the fourth defendant, the estate of Garry James Jackson, and the fifth and sixth defendants, Sandra Gail Jackson and Sherril Anne Jackson.
At all relevant times, the first to sixth defendants traded together as Jackson Bros Graziers (Jackson Bros).
The plaintiff, National Australia Bank Limited, either directly or through previous entities, has provided facilities and loaned monies to Jackson Bros since around 1990.[2]
[2] Affidavit of Jeffrey David Pontifex affirmed on 18 December 2023 (Second Pontifex Affidavit) [8(1)].
The plaintiff commenced this proceeding against the defendants on 9 October 2023 seeking orders for payment of monies alleged to be payable by the defendants to the plaintiff and possession of the Property pursuant to the terms of a mortgage, which secures monies loaned by the plaintiff to the defendants.
The defendants filed a defence on 10 November 2023 denying the plaintiff's claim and that it is entitled to the relief sought. A defence and counterclaim was subsequently filed on 4 December 2023 (Defence and counterclaim), which the defendants have confirmed replaces the earlier defence filed.[3]
[3] ts 70 - 72.
The plaintiff applies:
(a)for summary judgment pursuant to O 14 of the Rules of the Supreme Court 1971 (WA) (RSC) by chamber summons filed on 16 November 2023 (O 14 Summary Judgment Application); and
(b)for summary judgment pursuant to O 16 r 1 RSC (O 16 Summary Judgment Application) by chamber summons filed on 19 December 2023, alternatively to strike out the counterclaim filed by the defendants on 4 December 2023, pursuant to O 20 r 19 RSC (Strike Out Application),
(together, the Applications).
For the reasons that follow:
(a)the plaintiff has leave to bring the O 14 Summary Judgment Application, the time for which is extended to the date of filing;
(b)the O 14 Summary Judgment Application and the O 16 Summary Judgment Application are allowed;
(c)judgment will be entered for the plaintiff against the defendants; and
(d)orders will be made for the Mortgagors to deliver up possession of the Property to the plaintiff.

The plaintiff's claim and the evidence relied upon

In essence, the plaintiff claims that:
(a)the defendants are in default of the terms of a loan agreement entered into between the plaintiff and the defendants in 2017, which is secured by a mortgage over the Property;
(b)the defendants have failed to remedy the default; and
(c)the plaintiff is entitled to judgment for the amount owing and to possession of the Property.
The plaintiff relies on an outline of submissions filed on 7 March 2024 in support of the Applications.
In support of the O 14 Summary Judgment Application, the plaintiff relies upon affidavits of:
(a)Jeffrey David Pontifex, the plaintiff's State Business Executive for Regional and Agribusiness in Western Australia, affirmed on 16 November 2023 (First Pontifex Affidavit); and
(b)Nicholas Robert White, a solicitor employed by the plaintiff's solicitors, Norton Rose Fulbright, sworn and filed on 7 March 2024 (First White Affidavit) and 3 April 2024 (Second White Affidavit).
In support of the O 16 Summary Judgment Application, the plaintiff relies upon an affidavit of Jeffrey David Pontifex, affirmed on 18 December 2023 (Second Pontifex Affidavit).
At the hearing of the Applications on 30 April 2024, an unredacted copy of a letter from Jackson Bros signed by the first defendant, Keith Jackson, to Greg Daniel and Geoffrey Brown of the plaintiff, dated 20 March 2006 (20 March 2006 Letter) was also tendered, by consent.[4]
[4] Exhibit 4.

The defendants' position and evidence relied upon

I refer to the matters raised by the defendants in the Defence and counterclaim and in opposition to the Applications in more detail later in these reasons.
In essence, the defendants deny they are liable to the plaintiff and that the plaintiff is entitled to the relief claimed. The defendants allege, by way of counterclaim, that they have suffered loss and damage as a result of, amongst other things, unconscionable and fraudulent dealings by 'BNZA', which refers to the Bank of New Zealand (BNZA) and the plaintiff, as BNZA's successor.
In opposition to the Applications, the defendants rely upon:
(a)a document titled 'Defendant's Submission in Answer to the Plaintiffs Submissions Norton Rose Fulbright Letter' filed on 21 March 2024; and
(b)an affidavit of Keith Edward Stansmore Jackson sworn on 22 February 2024, as amended and re‑filed on 2 April 2024 (Jackson Affidavit).
At the hearing of the Applications on 11 April 2024, the defendants also sought to tender and rely upon documents listed in an annexure to the Defence and counterclaim. The plaintiff consented to the tender of three of those documents.[5] The plaintiff objected to the tender of the remaining documents listed in the annexure.
[5] Exhibits 1, 2 and 3 tendered on 11 April 2024.
Orders were made for the plaintiff to file and serve a notice of its objections and for the defendants to file and serve a response to the plaintiff's notice of objection, which the parties did. Ultimately, the plaintiff did not oppose the tender of certain documents for the limited purpose of determining the Applications but maintained its objections to the tender of others, as outlined in the schedule of consent and objections filed.[6]
[6] Plaintiff's schedule of grounds of consent or objection to the tender of the list of annexures to the defendants' counterclaim dated 4 December 2023 filed on 16 April 2024.
For the reasons I gave at the adjourned hearing on 30 April 2024,[7] I ruled that, for the purpose of the hearing and determination of the Applications, the defendants be permitted to tender and rely upon the documents in the list of annexures to the Defence and counterclaim, except for the following:
1.KESJ-6, described as 'Two letters from NAB dated 23 February 2006 demanding $169,671.74 in relation to the CV facility.'
2.KESJ-10, described as 'Transcript of "NAB Letter of Offer" telephone meeting 23 February 2006, with Dinny Lawrence and Greg Daniel.'
3.KESJ-11, described as 'Excerpt from Transfer of Land Act 1893, Section 58.'
4.KESJ-13, described as 'Transcript of recorded meeting on or about the 14^th of April 2022 between NAB staff (Jeff Pontifex, Karen Duncan and Damian Callachor) (Callachor via tele link)).'
5.KESJ‑14, described as 'Transcript of recorded telephone meeting, on 31^st March 2006 between NAB Legal Naomi Johnstone and Keith Jackson.'
[7] ts 132 - 137.
The documents tendered by the defendants at the hearing on 30 April 2024 were marked as Exhibit 5.[8]
[8] Being those numbered and marked as annexures KESJ-1A, KESJ-1B, KESJ-2, KESJ-2A, KESJ-3, KESJ‑4, KESJ-4A, KESJ-5, KESJ-7, KESJ-8, KESJ-9, KESJ-10A, KESJ-12, KESJ-12A and KESJ-12B.

Procedural requirements and applicable legal principles

Summary judgment - O 14 RSC

The procedural requirements for an application for summary judgment under O 14 RSC were summarised by Archer J (as her Honour then was) in Cologna Investments Pty Ltd as trustee for the P. and D. Panizza Family Trust v Caranna.[9]
[9] Cologna Investments Pty Ltd as trustee for the P. and D. Panizza Family Trust v Caranna [2023] WASC 368 (Archer J) (Cologna Investments) [27].
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.[10]
[10] O 14 r 1(1) RSC.
An application for summary judgment 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.[11]
[11] O 14 r 2(1) RSC.
The legal principles relating to applications for summary judgment are well established. The power to grant summary judgment should be exercised with great care, and summary judgment should only be granted in the clearest of cases where there is no real issue to be tried. The key principles were summarised by the Court of Appeal in Sutton Investments Pty Ltd v Realistic Investments Pty Ltd,[12] as follows:
… 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 in 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].
[12] Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24].
The plaintiff bears the legal burden of persuading the court that its claim is a good one and that 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 passes to the defendant to show there is an arguable defence or some other reason there ought to be a trial of the action.[13]
[13] Westpac Banking Corporation v Anderson [2017] WASC 106 [53] ‑ [54], [103]. See also Deputy Commissioner of Taxation v Lafferty[2017] WASC 257 (Lafferty) [54] (Tottle J), citing Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109 (Moscow Narodny Bank), 110 (Brinsden J); Bankwest (a division of CBA) v Mann [2015] WASC 187 (Bankwest v Mann) [46] (Gething AM); HSBC Bank Australia Ltd v Mavaddat [2015] WASC 153 [26] (Gething AM); GEL Custodians Pty Ltd v Dewar [2014] WASC 177 [25] (Gething AM); Wright v Wright [2002] WASC 30 [19] (Sanderson M); Morgan v Pallister [2004] WASC 188 [4] (Pullin J).
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.[14]

Summary judgment - O 16 RSC

[14] Lafferty [54] citing Moscow Narodny Bank (113); Wallingford v Mutual Society (1880) 5 App Cas 685, 704 (Lord Blackburn).

Order 16 r 1 RSC allows a defendant to bring an application for summary judgment for the dismissal of an action on the grounds that the action is frivolous or vexatious, that the defendant has a good defence on the merits, or that the action should be disposed of summarily or without pleadings.
The court's power to grant summary judgment under O 16 also applies to a counterclaim.[15] The court also has power in its inherent jurisdiction to grant summary judgment to a plaintiff in relation to a counterclaim brought by a defendant.[16]
[15] NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107 [39] - [40].
[16] WA Country BuildersPty Ltd v Premium Coastal Property Pty Ltd[2012] WASC 236 [11] (Sanderson M); Helmers v Como[2014] WASC 394 [43] (Gething AM); Knights Capital Group Ltd v Bajada and Associates Pty Ltd [2016] WASC 69 [39] (Pritchard J).
As for an application made under O 14, an application for summary judgment under O 16 must be brought within 21 days after an appearance has been filed, or a later time with leave of the court.[17] The application must be supported by affidavit verifying the facts upon which it is based.[18]
[17] O 16 r 1(1) RSC.
[18] O 16 r 1(2) RSC.
The legal principles relating to an application for summary judgment pursuant to O 16 r 1(1) RSC are well established and largely mirror those applicable to an application under O 14. They were summarised by Pritchard J in Gerovich v Maxwell John Gerovich as executor and trustee of the estate of Anthony Gerovich[19] and, more recently, by the Court of Appeal in Pisano v South Metropolitan Health Service,[20] as follows:[21]
[19] Gerovich v Maxwell John Gerovich as executor of the estate of Anthony Gerovich [2018] WASC 153 [27] ‑ [32] (Pritchard J).
[20] Pisano v South Metropolitan Health Service [2023] WASCA 80 (Buss P, Vaughan & Hall JJA) (Pisano) [52]. See also Pearson v Connor [2024] WASCA 49 [36] - [37] (Mitchell & Hall JJA, Seaward J).
[21] The references to statement of claim also apply to a counterclaim.
[52]The general principles that apply on a defendant's application for summary judgment under O 16 r 1(1) RSC are well-established:
1.The power to order summary judgment is one that should be exercised with great care (sometimes expressed as 'exceptional caution'). A party should not ordinarily be denied the opportunity to have its case determined following trial. It is only in the clearest of cases, where there is a high degree of certainty about the ultimate outcome of the proceedings if they were to go to trial, that summary judgment ought properly to be granted. Accordingly, summary judgment will be granted only where it is clear there is no real question to be tried.
2.Put alternatively, the relevant question for summary dismissal is whether, on the materials before the court, it has been demonstrated that the plaintiff's action should not be permitted to go to trial in the ordinary way because it is apparent that it must fail.
3.At all times the defendant retains the legal onus of demonstrating that the application for summary judgment ought to succeed. The defendant must establish that there is no real question to be tried on any cause of action raised by the plaintiff.
4.If a defendant's affidavit material establishes the basis for the summary judgment application, the plaintiff may assume an evidentiary onus to show why summary judgment should not be given. The plaintiff may, by an affidavit to show cause pursuant to O 16 r 2(1) RSC, seek to demonstrate the existence of a triable issue. The plaintiff's affidavit must condescend to particulars - it must set out facts which establish that it is reasonable to allow the plaintiff to pursue the action.
5.Actions should not be disposed of summarily where the material factual issues between the parties are in dispute. Similarly, summary dismissal should not be awarded simply because the court has formed the view that the plaintiff is unlikely to succeed on the factual issues. Unless the evidence is inherently incredible, where there is a conflict in the affidavit evidence the court should approach the summary judgment application on the basis that the facts set out in the affidavits of the party resisting judgment will be accepted at trial. But the court is not bound to accept uncritically, as raising a factual dispute calling for further investigation, every statement in an affidavit however inherently improbable in itself or equivocal, lacking in precision or inconsistent with undisputed contemporary documents or other statements by the deponent.
6.Where a plaintiff's claim depends on propositions of law apparently precluded by existing authority that may not always be the end of the matter. The court should be careful not to risk stifling the development of the law by summarily rejecting a claim if there is a reasonable possibility that the law is developing. Summary processes must not be used to stultify the development of the law where existing authority may be overruled, qualified or further explained.
7.It is not the case that summary judgment will only be given where the action is so hopeless as to not require argument. Extensive argument may be necessary to demonstrate that the plaintiff's case is so clearly untenable that it cannot possibly succeed.
8.On an application under O 16 r 1(1) RSC the plaintiff is confined to the causes of action pleaded in the statement of claim (although the statement of claim will be construed broadly and generously, with ambiguities assumed in favour of the plaintiff, and a reasonable application to amend will be permitted). It is not for the court to identify or accept possible causes of action which are arguably available on the evidence but are not pleaded.
(citations omitted)

Strike Out Application

The legal principles relating to a strike out application are also well established. The principles were comprehensively set out by Smith J in Vantage Holdings Group Pty Ltd v Donnelly [No 4][22] and affirmed by the Court of Appeal in English v Vantage Holdings Group Pty Ltd,[23] as follows:
[22] Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398 [60].
[23] English v Vantage Holdings Group Pty Ltd [2021] WASCA 47 [55] - [56] (Murphy & Vaughan JJA), [163] (Mitchell JA agreeing).
55…
The principles relevant to the strike out application are as follows:
(a)the essential functions of a pleading are to define and limit the issues for decision, to provide the basis for determining discovery and the admissibility of evidence for trial, and to ensure a fair trial by putting the other side on notice of the case it must meet;
(b)a statement of claim must not plead allegations at too high a level of generality. A pleading must be sufficiently particular to conform with one of the primary objects of pleadings, to inform the opposing party of the case that it must meet;
(c)a statement of claim must state specifically the relief or remedy claimed;
(d)the court should proceed with caution before striking out a pleading on the ground that it does not disclose a reasonable cause of action. While the court may determine a difficult question of law on such an application, it would usually be appropriate to leave the determination of such questions for trial;
(e)in alleging no reasonable cause of action:
(i)the question to be decided is not whether the facts pleaded are in themselves sufficient to give rise to a cause of action. Rather, the question is whether it would be open to the party (on its pleadings) to prove facts at the trial which would constitute a cause of action; and
(ii)'reasonable' means reasonable according to law. If the facts pleaded conceivably give rise to relief, then the cause of action should be held to be reasonable;
(f)the mere fact that a case appears weak is not of itself sufficient to strike out the action;
(g)in considering a strike out application, it is now necessary to consider the role of pleadings in the context of case management techniques. Case management considerations are not, however, necessarily antithetical to the observance of pleading rules. The objects of O 1 r 4A and 4B of the Rules of the Supreme Court 1971 (WA) are often promoted by a clear and precise statement of the issues for decision;
(h)provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action (or defence), and apprising the parties of the case that has to be met, the court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the court to be spent extensively debating the application of technical pleading rules that evolved in, and derive from, a very different case management environment;
(i)pleadings may be struck out on the ground that they may prejudice, embarrass or delay the fair trial of the action because they are evasive, they conceal or obscure the real questions in controversy, they are ambiguous or not reasonably intelligible, they raise immaterial or irrelevant issues, they fail to confine the issues or state the case of the party in question with reasonable particularity, or they raise a case in terms which are simply too general; and
(j)irrelevant or unnecessary pleas in a statement of claim will be struck out on the grounds that they will prejudice, embarrass or delay the fair trial of the action where the defendant must traverse the allegations and, thereby, raise false issues.
(citations omitted)
To the extent the strike out application is made on the ground that the statement of claim discloses no reasonable cause of action, pursuant to O 20 r 19(1)(a) RSC, no evidence is admissible.[24]
[24] O 20 r 19(2) RSC.
An application under O 20 r 19 RSC to strike out a pleading must be made within 21 days of service of the pleading to which the application relates. The court has a discretion to extend the time in which an application under O 20 r 19 RSC is brought.

Leave to apply out of time

The 21‑day limit to bring an application for summary judgment (and to strike out a pleading) reflects the view that such applications should be brought promptly and at an early stage of the proceeding, before unnecessary expense is incurred. Where leave is required to bring the 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.[25]
[25] Cologna Investments [26], [27.2]. See also Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 11) [2016] WASC 235 [4] (Chaney J); Westpac Banking Corporation v Anderson [2017] WASC 106 [38] (Pritchard J); Lafferty[40] ‑ [41] (Tottle J).
In Gallo v Dawson,[26] McHugh J said, in the context of leave to extend time to appeal:
The discretion to extend time is given for the sole purpose of enabling the Court of Justice to do justice between the parties. This means that the discretion can be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant and refusal of the application for the extension of time.
[26] Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458, 459.

The facts relevant to the plaintiff's claim and the O 14 Summary Judgment Application

The following facts, as verified by the affidavits filed by the plaintiff in support of the O 14 Summary Judgment Application, and which I accept, make up the essential elements of the plaintiff's claim.

The lending facilities

On about 31 March 2017, the plaintiff and the defendants entered into a loan contract by executing a document titled 'Business Letter of Offer' dated 20 January 2017 (Letter of Offer), which incorporated the NAB Business Markets Specific Conditions, Overdraft Specific Conditions and General Conditions.[27] The Letter of Offer was signed on behalf of the plaintiff by Louise Stowell, Agribusiness Manager on 20 January 2017 and by each of the defendants (in the case of the fourth defendant, by the late Garry James Jackson) on 31 March 2017.[28]
[27] First Pontifex Affidavit [9], 'JDP-2'
[28] First Pontifex Affidavit 'JDP-2' pages 52 - 54.
Pursuant to the Letter of Offer, the plaintiff provided the defendants with the following facilities:[29]
(a)Farmers Choice Farm Management Account Overdraft with a limit of $100,000 (Overdraft); and
(b)NAB Business Market - Flexible Rate Loan (account number ending 9053) with a limit of $675,000 (Business Loan),
(together, the Facilities).
[29] First Pontifex Affidavit [10], 'JDP-2' pages 18 - 19.
On about 29 August 2018, the plaintiff and the defendants agreed to vary the terms of the Business Loan to, amongst other things, increase the facility limit to $774,000, as provided in a 'Business Letter of Variation' dated 22 August 2018 (Letter of Variation). The Letter of Variation was signed by each of the defendants (in the case of the fourth defendant, by the late Garry James Jackson) on 29 August 2018.[30]
[30] First Pontifex Affidavit [12], 'JDP-3'.
The account number of the Business Loan changed to account number ending 5566, following extension of the expiry date of the loan in February 2021.[31]

Mortgage

[31] First White Affidavit [3] - [4], 'NRW-3'.

The Facilities are secured by a first registered mortgage with dealing number E313667, which the first, second and third defendants (Mortgagors) granted in favour of the plaintiff on about 5 February 1990 (Mortgage).[32]
[32] First Pontifex Affidavit [13] - [14], [16], 'JDP-5', 'JDP-6'.
The Mortgage is listed in the Second Schedule of the certificates of title for the Property.[33]

The relevant terms of the Letter of Offer

[33] First Pontifex Affidavit 'JDP-4' and 'JDP-5'.

As stated, the Letter of Offer incorporated the NAB Business Markets Specific Conditions, Overdraft Specific Conditions and General Conditions, and includes the following express terms:[34]
[34] Except where already defined in these reasons, capitalised terms have the meaning given to them in the Letter of Offer and the terms and conditions included in the Letter of Offer.
1.The defendants agreed and were required to repay to the plaintiff the amount outstanding in relation to:
(a)the Business Loan in full on the Final Repayment Date, then being 31 October 2019;[35] and
[35] First Pontifex Affidavit 'JDP-2': Letter of Offer, cl 3.1(b) NAB Business Markets Specific Conditions ('JDP-2' page 25). The Final Repayment Date means the earlier of the last day of the Facility Term (if any), the date the Facility Limit is cancelled, or the date the Facility is terminated or otherwise ends: Letter of Offer, cl 25.2 General Conditions ('JDP-2' page 48). The Expiry Date for the Business Loan was 31 October 2019 ('JDP-2' page 19).
(b)the amount outstanding in relation to the Overdraft on demand.[36]
[36] First Pontifex Affidavit 'JDP-2': Letter of Offer, cl 3 Overdraft Specific Conditions ('JDP-2' page 22).
2.The defendants agreed and are required to pay to the plaintiff:
(a)interest on the Business Loan at a variable interest rate calculated as the aggregate of the plaintiff's Business Lending Rate (then 3.35% per annum) plus the Customer Margin of 2.89% per annum;[37]
(b)interest on the Overdraft at a variable interest rate calculated as the aggregate of the plaintiff's Farmer's Choice Prime Indicator Rate (then 6.12% per annum) plus the Customer Margin of 1% per annum;[38] and
(c)the specified fees and other costs, including reasonable costs incurred by the plaintiff in exercising or enforcing its rights in connection with the Facilities or the Mortgage.[39]
3.Relevantly, cl 12 of the General Conditions provides that:
(a)the defendants are in default if they fail to pay any amount due to the plaintiff pursuant to the Letter of Offer on time;[40]
(b)if the defendants are in default by failing to pay any amount due on time, upon the plaintiff giving notice of default to the defendants in accordance with cl 12.2(a)(ii) of the General Conditions, the total amount owing under the Facilities will be immediately due and payable if the default remains unremedied at the end of the period specified in the notice;[41]
(c)a written statement or certificate by the plaintiff about a matter or an amount payable can be relied upon as evidence of the matter or amount payable unless and until it is established to be incorrect;[42] and
(d)upon the total amount owing under the Facilities being due and payable, the plaintiff may enforce any Security. The term 'Security' is relevantly defined to mean the security for the payment of money or performance of obligations described in the Details or Other Details.[43]
[37] First Pontifex Affidavit 'JDP-2': Letter of Offer, page 6, cl 5 NAB Business Markets Specific Conditions and cl 6 and cl 7 General Conditions ('JDP-2' pages 20, 26, 31 - 32).
[38] First Pontifex Affidavit 'JDP-2': Letter of Offer, page 5, cl 4 Overdraft Specific Conditions and cl 6 and cl 7 General Conditions ('JDP‑2' pages 19, 22, 31 - 32).
[39] First Pontifex Affidavit 'JDP-2': Letter of Offer, cl 5 General Conditions ('JDP-2' page 31).
[40] First Pontifex Affidavit 'JDP-2': Letter of Offer, cl 12.1(a) and cl 12.1(c) General Conditions ('JDP-2' page 37).
[41] First Pontifex Affidavit 'JDP-2': Letter of Offer, cl 12.2(a)(ii) General Conditions ('JDP-2' page 38).
[42] First Pontifex Affidavit 'JDP-2': Letter of Offer, cl 23.2(a) General Conditions ('JDP-2' page 43).
[43] First Pontifex Affidavit 'JDP-2': Letter of Offer, cl 12.2(b)(iv) and cl 25.2 ('Security', 'Security Interest') General Conditions ('JDP-2' pages 38 and 50).
In the Letter of Offer, alongside 'Facility Specific Security' in the Facility Details for both the Overdraft and Business Loan it states, 'Not Applicable'. The Mortgage is described under the headings 'Other Details' and 'Securities', as follows:[44]
OTHER DETAILS
…
Securities
Unless [the plaintiff] specifies in writing to the contrary, the securities listed below, together with any additional securities provided by you or a Security Provider after the date of this Letter of Offer, secure all new Facilities detailed within this Agreement and are in addition to any securities which are listed in the Details as specific to an individual Facility.
The taking of any new securities detailed below does not prejudice or waive [the plaintiff's] right to rely upon, and enforce, earlier securities.
Registered Mortgage over property situate at Nelson Location 8669-8678 Tattenham Road Northcliffe WA more particularly described in Certificate of Title Volume 1986 Folio 76 and 78.
[44] First Pontifex Affidavit 'JDP-2': Letter of Offer, pages 5 and 6 ('JDP-2' pages 19 and 20).
Despite the defendants' submissions to the contrary, I am satisfied that the Mortgage secures the Facilities. The defendants' 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.
Although there are terms of the Letter of Offer which provide for the plaintiff to charge the defendants default interest,[45] the plaintiff notified the defendants that, from on or about 10 February 2020, it would not charge default interest on overdue amounts or amounts in excess of the facility limit for the Facilities.[46]

The relevant terms of the Mortgage

[45] First Pontifex Affidavit 'JDP-2': Letter of Offer, pages 5 and 6 ('JDP-2' pages 19 and 20).

[46] First Pontifex Affidavit [32] and 'JDP-20'.

The Mortgage incorporates the terms set out in the Memorandum of Provisions MP 59 (Memorandum).[47] Those terms relevantly provide that:
[47] First Pontifex Affidavit [15], 'JDP-7'.
1.Upon written demand being made of the Mortgagors by or on behalf of the plaintiff at any time, the Mortgagors shall pay to the plaintiff the monies secured by the Mortgage as specified in the demand.[48]
[48] First Pontifex Affidavit 'JDP-7': Memorandum, cl 1(a) ('JDP-7' page 71).
2.For the purpose of the Mortgage, a certificate given to the Mortgagors by or on behalf of the plaintiff stating all or any of the following is conclusive evidence of the truth of its contents and binding on the Mortgagors:[49]
(a)the amount of the monies secured by the Mortgage;
(b)that such amount is owing or payable to the plaintiff by the Mortgagors or any other person whose indebtedness to the plaintiff is secured by the Mortgage; and
(c)that the plaintiff is entitled to payment of such amount on demand.
3.If there is default in paying monies secured by the Mortgage when demanded, upon giving any notice required by statute, the plaintiff may at any time enter upon and take possession of the Property.[50]
4.The Mortgage is a running and continuing security which remains in full force until a final discharge of the Mortgage has been given by the plaintiff.[51]

Extension of the Facilities

[49] First Pontifex Affidavit 'JDP-7': Memorandum, cl 1(c) ('JDP-7' page 71).

[50] First Pontifex Affidavit 'JDP-7': Memorandum, cl 9(a) ('JDP-7' pages 72 - 73).

[51] First Pontifex Affidavit 'JDP-7': Memorandum, cl 21 ('JDP-7' page 75).

The plaintiff agreed to extend the date for repayment of the Facilities by the defendants as follows:
(a)by letter dated 9 March 2020, it extended the review date for the Overdraft to 30 June 2020;[52]
(b)by letter dated 25 June 2020, it agreed to defer payments under the Business Loan until 30 September 2020;[53]
(c)by email dated 5 August 2020, it agreed to provide hardship assistance and defer payments due under the Facilities to 31 October 2020;[54]
(d)by letter dated 9 November 2020, it extended the date for repayment of the Facilities to 7 February 2021;[55] and
(e)by letter sent on 22 March 2021, it extended the date for repayment of the Facilities to 31 July 2021.[56]

Non-renewal and cancellation of Business Loan and Overdraft

[52] First Pontifex Affidavit [18(1)], 'JDP-8'.

[53] First Pontifex Affidavit [18(2)], 'JDP-9'.

[54] First Pontifex Affidavit [18(3)], 'JDP-10'.

[55] First Pontifex Affidavit [18(4)], 'JDP-11'.

[56] First Pontifex Affidavit [18(5)], 'JDP-12'.

On 22 July 2021, the plaintiff advised the defendants that the Business Loan was due to expire on a further extended date of 10 November 2021, would not be renewed and that payment of the outstanding amount in relation to the Business Loan was required to be made by 10 November 2021.[57]
[57] First Pontifex Affidavit [19], 'JDP-13'.
On the same date, 22 July 2021, the plaintiff notified the defendants of its intention to cancel the Overdraft, that it would provide the Overdraft for a further extended period to 10 November 2021, by which time payment of the outstanding amount of the Overdraft was to be made in full.[58]
[58] First Pontifex Affidavit [20], 'JDP-14'.
On 23 November 2021, the plaintiff further extended the time for payment of the outstanding amount in relation to the Business Loan and the Overdraft to 31 January 2022.[59] On 21 January 2022, the plaintiff again extended the date for payment of each of the Facilities by a further month to 28 February 2022.[60]

Notice of default and demand

[59] First Pontifex Affidavit [21], 'JDP-15'.

[60] First Pontifex Affidavit [22], 'JDP-16'.

The defendant failed to pay the amount due and owing under the Facilities by 28 February 2022. Just under a year later, on 23 February 2023, the plaintiff issued and served a notice of default and demand (Default Notice) on the defendants, which:[61]
(a)demanded payment of the amount outstanding of $776,716.75 by 11 April 2023, with interest, costs and charges accruing at the applicable rates; and
(b)notified the defendants and the Mortgagors that, if payment was not made by that date, the plaintiff may enforce its rights pursuant to the Letter of Offer and under the Mortgage for possession by exercising its power of sale in respect of the Property.
[61] First Pontifex Affidavit [23] - [27], 'JDP-17' - 'JDP-19'.
The defendants did not comply with the Default Notice within the time specified and have not repaid the amounts due and owing in relation to the Facilities under the terms of the Letter of Offer and the Mortgage.[62]

Amount due and owing

[62] First Pontifex Affidavit [29].

As at 7 November 2023, the amount owing under the Facilities was $810,494.53.[63]
[63] First Pontifex Affidavit [34].
On 7 March 2024, the plaintiff issued a certificate of the amount payable for the purposes of cl 1(c) of the Memorandum and cl 23.2 of the General Conditions.[64] The certificate was sent to the defendants under cover of a letter dated 7 March 2024 sent by ordinary prepaid post and email to the defendants.[65] The certificate stated that, as at 6 March 2024, the amount owing under the Facilities was $835,014.27, comprising:
(a)$107,852.21 pursuant to the Overdraft; and
(b)$727,162.06 pursuant to the Business Loan,
which amounts are reflected in the copies of the bank statements attached to the First White Affidavit.[66]
[64]First White Affidavit [7] - [8].
[65] First White Affidavit [7] - [9], 'NRW-6', 'NRW-7', 'NRW-8'.
[66] First White Affidavit [2], 'NRW-1', 'NRW-2'.

The plaintiff claims payment of the amount owing under the Facilities together with the further interest that has accrued. It also seeks an order that the Mortgagors (the first, second and third defendants) deliver up possession of the Property to it.

Procedural history and application for leave

The plaintiff was required to file its application for summary judgment pursuant to O 14 r 1(1) RSC within 21 days after the defendants entered an appearance. The defendants each entered an appearance on 19 October 2023. However, on 24 October 2023, the court informed the defendants by email that the appearances entered were defective and amended appearances were required to be filed by 27 October 2023.[67]
[67] First Pontifex Affidavit [5(1)].
The defendants each filed an amended appearance on 26 October 2023 and served copies of them on the plaintiff on 27 October 2023.[68]
[68] First Pontifex Affidavit [5(3) and (4)].
The plaintiff's solicitors formed the view that, as the original appearances that had been filed were defective, the time for filing an application for summary judgment would run from the date of the amended appearances, being 26 October 2023. They worked on the basis that any application for summary judgment was to be filed by 16 November 2023.[69]
[69] First Pontifex Affidavit [5(2)].
On 7 November 2023, the plaintiff's solicitors noted, as is the case, that despite being dated 26 October 2023, each of the amended appearances filed bear a court stamp dated 19 October 2023.[70]
[70] First Pontifex Affidavit [5(5)].
On 11 November 2023, the defendants served the plaintiff with a copy of their defence filed on 10 November 2023.[71] The plaintiff considered the defence and, on 16 November 2023, filed an amended statement of claim and the O 14 Summary Judgment Application.
[71] First Pontifex Affidavit [5(6)].
Mr Pontifex states that because of the matters deposed to, as outlined above, the plaintiff was not in a position to finalise its application for summary judgment earlier.[72] The plaintiff seeks leave to bring that application, which was filed more than 21 days after the appearance is recorded as having been entered by each of the defendants.
[72] First Pontifex Affidavit [6].
Although the appearances entered by each of the defendants bear the date stamp of 19 October 2023, it is evident from a review of the court file that the appearances were not filed until 26 October 2023. As such, in my view, the O 14 Summary Judgment Application was filed within 21 days of compliant appearances being filed.
For the avoidance of any doubt, given the period of one week between the initial and amended appearances being entered, I am satisfied on the evidence before me that, in the circumstances, the plaintiff should have leave to bring the O 14 Summary Judgment Application. To the extent there is any delay, it is not an undue delay and is entirely justifiable in the circumstances. There is no evidence of any prejudice to the defendants or any other reason why leave ought not be granted.
The Defence and counterclaim was filed by each of the defendants on 4 December 2023. On 5 December 2023, orders were made that the plaintiff file and serve any application for summary judgment and/or strike out in relation to the counterclaim by 19 December 2023.
The plaintiff filed the O 16 Summary Judgment Application and the Strike Out Application on 19 December 2023, within the time required. As such, leave is not required in relation to those applications.

The plaintiff has made out a prima facie case

I am satisfied that the plaintiff has complied with the procedural requirements for an application for summary judgment pursuant to O 14 RSC.
The First Pontifex Affidavit and the First White Affidavit verify the essential elements of the plaintiff's cause of action and the facts verifying the plaintiff's claim, as set out in these reasons. Mr Pontifex also deposes to his belief, on behalf of the plaintiff, that there is no defence to the plaintiff's claim.[73]
[73] First Pontifex Affidavit [40].
In breach of the terms of the Letter of Offer and the Mortgage,[74] the defendants did not pay the amounts owing to the plaintiff under the Facilities on time. The defendants failed to comply with the Default Notice by paying the amounts demanded of them by 11 April 2023 and have made no payments at all. I am satisfied the plaintiff has made out a prima facie case that it is entitled to recover the amount due and owing under the Facilities and the order sought for possession of the Property.
[74] Specifically, cl 12.2(a)(ii) of the General Conditions to the Letter of Offer and cl 1(a) Memorandum.
The evidentiary burden therefore passes to the defendants to show that there is an arguable defence to the plaintiff's claim, an issue or question to be tried or some other reason why there ought to be a trial of the action.

Do the matters raised by the defendants give rise to an arguable defence or triable issue?

In the Defence and counterclaim, the defendants make a number of general denials of the plaintiff's claim and seek to challenge the validity and enforceability of the Letter of Offer and the Mortgage. They also raise a counterclaim in respect of alleged fraudulent dealings by a former employee of BNZA in relation to a facility held by Centreview Holdings Pty Ltd (Centreview Holdings) and alleged subsequent conduct of the plaintiff. Centreview Holdings was a company associated with the first defendant. It was deregistered on 11 September 1998.
I will first address the matters raised in defence of the plaintiff's claim in relation to the Letter of Offer and the Mortgage. I will then consider the matters raised by way of counterclaim. In doing so, I take into account that the defendants are self-represented litigants. As such, they are entitled to some leniency in relation to compliance with the court rules.[75] It is appropriate that I approach the documents in which they articulate their case with some flexibility.[76] However, at the same time, I must ensure that any latitude given to them does not deprive the plaintiff of its right to procedural fairness and a fair hearing.[77]
[75] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 (Glew v Frank Jasper) [10] (Newnes JA & Murphy JA).
[76] Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536 ‑ 537 (Kirby P), 543 (Hope & Samuels JJA agreeing); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J).
[77] Re Rules of the Supreme Court 1971 (WA); ex parte Gates [2018] WASC 213 (Ex parte Gates) [57] (Vaughan J); Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51] (Pullin, Newnes & Murphy JJA); MTI v SUL [No 2] [2010] WASCA 58 [42] ‑ [43] (Newnes JA, Pullin & Buss JJA agreeing); Glew v Frank Jasper [10].
As accepted by the plaintiff:[78]
(a)the court is to approach the Defence and counterclaim with flexibility and be astute to ensure that there is no viable defence which, with appropriate amendment or permissible assistance from the court, could be put into proper form; and
(b)if the evidence reveals facts which could, if properly pleaded, form an arguable defence, summary judgment is not appropriate.

The Letter of Offer and Mortgage

[78] Referring to Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338 [21] (Beech J); Bankwest v Mann[6] (Gething AM).

The defendants' contentions relating to the Letter of Offer and enforceability of the Mortgage may be summarised, as follows:
(a)the Letter of Offer states that there is no security applicable to the Facilities;[79]
(b)the Letter of Offer is not registered at Landgate, in respect of which the defendants rely upon s 58 of the Transfer of Land Act 1893 (WA) (TLA);[80]
(c)the Mortgage is not a valid mortgage, is an unregistered instrument and cannot be relied upon because it breaches s 58 of the TLA;[81] and
(d)the Letter of Offer is void due to deceit, dishonesty, and fraud and due to alleged non‑compliance with cl 16.4 of the General Conditions to the Letter of Offer.[82]
[79] Defence and counterclaim [6].
[80] Defence and counterclaim [7].
[81] Defence and counterclaim [8] - [10].
[82] Defence and counterclaim [11]; Jackson Affidavit [2].
As to the first of the allegations relating to the Letter of Offer, as stated earlier in these reasons,[83] the defendants' argument to the effect that the Letter of Offer does not specify any additional security under 'Facility Specific Security' for each facility,[84] is without merit. The Mortgage is clearly the 'Security' described in the 'Other Details' section of the Letter of Offer.
[83] See [44].
[84] First Pontifex Affidavit 'JDP-2': Letter of Offer, pages 5 and 6 ('JDP-2' pages 19 and 20).
As to the second allegation, s 58 of the TLA 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 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.
As to the allegations concerning the validity of the Mortgage, it was submitted on behalf of the defendants, in effect, that the Mortgage is invalid and unenforceable because:
(a)the volume and folio numbers have been cancelled;[85]
(b)the plaintiff has 'altered their unregistered mortgage by the addition of details of Parties and Volume and Folio numbers';[86] and
(c)the Mortgage is an unregistered instrument and cannot be relied upon because it breaches s 58 of the TLA.[87]
[85] Defence and counterclaim [8].
[86] Defence and counterclaim [9].
[87] Defence and counterclaim [10].
In the oral submissions made on behalf of the defendants it was also submitted that the Mortgage is invalid because there is no monetary amount stated on the Mortgage registered at Landgate.
It was also submitted on behalf of the defendants, in effect, that the terms of the Memorandum were not included in the Mortgage because the Memorandum was not signed by the Mortgagors, and they were not given a copy of it.
There is no evidence to support the defendants' submission to the effect that the signatures on the Mortgage are not the defendants', 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.[88]
[88] First Pontifex Affidavit [14], 'JDP-6'.
A copy of the Mortgage is attached to the First Pontifex Affidavit marked 'JDP-6', starting at page 67 and in which the Property is described as:
(a)Nelson location 8669 and being the whole of the land in volume 1986, folio 76; and
(b)Nelson location 8678 and being the whole of the land in volume 1986, folio 78.
The description of the Property in the registered Mortgage accords with that in the securities section of the Letter of Offer. The number that appears in the top right-hand corner of the copy of the Mortgage at page 70 of the First Pontifex Affidavit, E313667, is the same as the number of the registered mortgage stated in the certificates of title for the Property.[89] There is no requirement that the Mortgage state a monetary amount.
[89] First Pontifex Affidavit 'JDP-4', 'JDP-5', pages 62 - 65.
I am satisfied that the Mortgage is properly registered in compliance with s 58 of the TLA and is valid and enforceable.
As to the contention that the Mortgagors are not bound by the terms of the Memorandum, the Mortgagors agreed and acknowledged in the Schedule of Covenants Terms and Conditions to the Mortgage,[90] amongst other things, that they would observe, perform and be bound by the covenants, obligations, provisions and stipulations of the Memorandum, which are deemed to be incorporated in the Schedule and as part of the Mortgage. A copy of the Memorandum is attached to the First Pontifex Affidavit marked 'JDP‑7'.
[90] First Pontifex Affidavit 'JDP-6', page 68.
The first defendant deposes that he was given a copy of the Memorandum in about 2002.[91] The Mortgagors also agreed and acknowledged in the Schedule of Covenants Terms and Conditions that they had received and read a copy of the memorandum before executing the Mortgage. As observed by Le Miere J in Permanent Custodians Limited v Shannon (No 2):[92]
… Where a person has signed a document, which is intended to affect legal relations, and there is no question of misrepresentation, duress, mistake or any other vitiating element, the fact that the person has signed the document without reading it does not put the other party in the position of having to show that due notice was given of its terms: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 [54]. …
[91] Jackson Affidavit [14].
[92] Permanent Custodians Limited v Shannon (No 2) [2018] WASC 295 [56].
The defendants have not made out any misrepresentation, duress, mistake, or any other vitiating element in relation to the execution of the Mortgage and incorporation of the terms of the Memorandum.
The defendants also refer to not having been provided with the original signed Letter of Offer and submit that the Letter of Offer is a 'false document', that pages have been altered,[93] and that it is 'a fabrication and void'.[94] These are bare allegations. The defendants do not give any particulars of the alleged falsity. There is no evidence to support the submissions made or any reason to doubt Mr Pontifex's evidence that the Letter of Offer attached to the First Pontifex Affidavit is a true copy of that document.
[93] Defendants' outline of submissions filed 21 March 2024 (Defendants' written submissions) [8].
[94] Defendants' written submissions [13].
The evidence adduced by the plaintiff includes what is deposed to as being a true copy of the Letter of Offer signed by the defendants. As the Court of Appeal stated in Connell v Australia and New Zealand Banking Group Limited,[95] it is sufficient for a bank to produce what is deposed to be a true copy of the original loan agreement signed by all parties to the agreement. It is not necessary for the plaintiff to produce the original Letter of Offer to the defendants or to the court. The same applies to the Mortgage.
[95] Connell v Australia and New Zealand Banking Group Limited [2023] WASCA 48 [24].
As to the Letter of Offer's alleged non‑compliance with cl 16.4 of the General Conditions, cl 16.4 provides:
16.4Variation
Unless otherwise provided, the terms of this Agreement may only be varied by the written agreement of the parties.
It is unclear what 'changes' are alleged to have been made in breach of cl 16.4. In the Jackson Affidavit,[96] the first defendant:
(a)refers to changes to the 'Letter of Advice' changing 'the terms and conditions of the original contract as signed by the defendants';
(b)says there was no advantage to the defendants in relation to those changes; and
(c)says the defendants would not have signed the 'original contract' had they been aware of the effect of the changes.
However, the defendants have not given any particulars of what changes they are referring to or the alleged effect of any such changes.
[96] Jackson Affidavit [2].
Mr Jackson also deposes to the loan account being closed and a new account opened which he says, together with the alleged 'changes' raises serious questions as to whether the 'loan' is tainted by fraud, which can only be dealt with at trial.[97] The Jackson Affidavit does not condescend to particulars or provide any support for the contention that there are questions to be determined as to whether the 'loan is tainted by fraud'.
[97] Jackson Affidavit [3] ‑ [4].
Clause 16 of the General Conditions deals with changes to the agreement in the Letter of Offer. Clause 16.1 provides for changes that the plaintiff may make upon giving notice under cl 16.2. Such changes include changes to fees and charges payable, interest rates applied, calculation of fees, charges and interest, changes to the amounts and dates of repayment, among others as specified.[98]
[98] First Pontifex Affidavit 'JDP-2': Letter of Offer, General Conditions cl 16.1 ('JDP-2', pages 40 - 41).
The change to the facility limit of the Business Loan from $674,000 to $774,000 was confirmed and accepted by each of the defendants signing the Letter of Variation on 29 August 2018.[99]
[99] First Pontifex Affidavit, 'JDP-3'.
I am not satisfied that these or any of the matters raised by the defendants in the Defence or the Jackson Affidavit give rise to an arguable defence to the plaintiff's claim, a triable issue or any other reason why there ought to be a trial of the action.

The defendants' counterclaim

The matters alleged to give rise to the defendants' counterclaim are alleged to have occurred between 1995 to 2006 in relation to facilities provided to Centreview Holdings, a company of which the first defendant, Keith Jackson, was a director between 2 January 1996 and 11 September 1998.[100] Centreview Holdings was deregistered on 11 September 1998.[101]
[100] Second Pontifex Affidavit [6] 'JDP-23', page 8.
[101] Second Pontifex Affidavit [6] 'JDP-23', page 7.
The defendants claim they have arguable causes of action against the plaintiff in 'deceit, dishonesty, fraud and unjust enrichment'. The alleged claims are said to arise from historical conduct by the plaintiff and its officers.
The defendants seek to rely upon a document titled 'Notice of Affidavit and Claim of Right' dated 27 January 2023 (Claim of Right), a copy of which is attached to the First Pontifex Affidavit.[102] A copy is also included in Exhibit 5 marked KESJ-12. The Claim of Right is stated to be 'In the matter of Centreview Holdings Pty Ltd and NAB and BNZA' and purports to set out a 'claim of right' by Keith Edward Stansmore Jackson in relation to alleged fraudulent activity by Mr Brian Dunn, a former employee of BNZA, in relation to a loan facility and account held by Centreview Holdings.
[102] First Pontifex Affidavit [37], 'JDP-21'.
The plaintiff's solicitors, Norton Rose Fulbright, wrote to the defendants on 15 February 2023,[103] acknowledging receipt of the Claim of Right and stating, amongst other things, that it has no legal effect. The plaintiff's solicitors also informed the defendants of their intention to proceed with enforcement in relation to the Facilities.
[103] First Pontifex Affidavit [38], 'JDP-22'.
The defendants also seek to rely upon documents titled:
(a)'NOTICE OF FAULT OF NO RESPONSE BY: Keith Edward Stansmore Jackson' dated 27 February 2023;[104] and
(b)'NOTICE OF DEFAULT of Affidavit and Claim of Right by Keith Edward Stansmore Jackson' dated 9 March 2023,[105]
in which it is alleged, in effect, that because the plaintiff and its officers did not respond to or address the claim in the Claim of Right they are taken to affirm the claim.
[104] A copy of this document is included in Exhibit 5 marked KESJ‑12A.
[105] Jackson Affidavit [6 a)], KESJ‑1. A copy of this document is also included in Exhibit 5 marked KESJ‑12B.
I accept the submissions made on behalf of the plaintiff to the effect that there is no basis in law for a 'claim of right' or that any failure to respond to such a claim is an admission of the matters stated. Nor are they matters that, of themselves, give rise to a defence to the plaintiff's claim, a triable issue or a reason why the matter should proceed to trial.

In essence, the defendants claim by way of counterclaim that the plaintiff has concealed a fraud on Centreview Holdings, which is alleged to have been committed in 1995 or 1996 by Mr Dunn. The alleged fraud concerns dealings between Mr Dunn, the first defendant (Mr Keith Jackson) and other parties in 1995 and 1996, involving what is described as an unauthorised withdrawal or transfer of $100,000 from a facility held in the name of Centreview Holdings (Centreview Facility) to an unrelated account in the name of Ivey Downs Pty Ltd on 4 January 1996.
The defendants allege, in effect, that the plaintiff sought to enforce its rights against Jackson Bros under facilities held by them previously, or otherwise took steps in relation to facilities held by Jackson Bros to 'cover up' or conceal the alleged fraud involving the Centreview Facility.
The counterclaim also refers to the plaintiff making demands of Jackson Bros in February 2006, which are alleged to have caused the defendants loss and damage,[106] though it does not plead or otherwise identify what the loss and damage alleged is or how it is said to have been caused.
[106] Defence and counterclaim [13].
The counterclaim also asserts that the Deed is void ab initio as it was signed under duress of threatened legal action.[107] However, no facts are pleaded to ground such a claim. The defendants also claim to have suffered loss because the plaintiff did not approve a loan or support Jackson Bros or their purchase of an agricultural lime resource, in respect of which they claim damages for 'opportunity cost lost' of $6 million.[108] No facts are pleaded to ground this claim.
[107] Defence and counterclaim [18], [19].
[108] Defence and counterclaim [15], [17], Prayer for relief [4].
The defendants claim they are entitled to damages in the order of $15 million in respect of their alleged counterclaim. In addition to the damages for 'opportunity cost lost' in relation to the agricultural lime resource of $6 million, this includes an additional amount of $6 million by way of exemplary and punitive damages and further exemplary and punitive damages for 'trauma, stress, intimidation, deceit, fraud and blackmail', amongst other things.

The plaintiff's submissions in relation to the counterclaim

It is not disputed that certain activities of Mr Dunn were the subject of criminal proceedings brought against him, which resulted in a criminal conviction.[109] The plaintiff denies the defendants' allegations that it sought to enforce its rights against Jackson Bros under facilities held by them, or otherwise took steps in relation to Jackson Bros' facilities, to 'cover up' any fraud affecting the Centreview Facility. The plaintiff's position is that there is no evidence to support the defendants' allegations, only bare assertions.
[109] In Perth District Court criminal proceeding IND 1952 of 1999.
The plaintiff says that, in any event, any claim of the nature alleged that the defendants may have had against it (which it denies) was settled under a Deed of Settlement and Restructure entered into between the plaintiff, each of the defendants trading as Jackson Bros,[110] and the first defendant, Keith Jackson (as Guarantor of the Centreview Facility) on 24 March 2006 (Deed). A copy of the Deed is attached to the Second Pontifex Affidavit marked 'JDP-24'.
[110] Garry James Jackson was still living at that time and entered into the Deed. He has since passed away and the proceeding is brought against his estate (the fourth defendant).
The plaintiff relies on the Deed, by which the defendants released and discharged the plaintiff in respect of any claims, as a defence to the counterclaim. It submits, in effect, that by their counterclaim, the defendants seek to revive the allegations made before the Deed was executed, almost 18 years after the release and discharge provided in the Deed. It says they seek to do so after having benefited from, and complying with the terms of, facilities provided to them by the plaintiff (including the Facilities) for a period of more than 13 years. It is only since the defendants' relatively recent default under the Facilities in 2019 that the allegations of fraud have resurfaced.
The plaintiff also submits that the Jackson Affidavit does not condescend to particulars or set out facts sufficient to ground any reasonable basis to allow the defendants alleged counterclaim to proceed. Rather, the defendants make broad, sweeping allegations of fraud by the plaintiff and its predecessor on Centreview Holdings in 1995 and 1996. The plaintiff says it is entirely unclear what facts, if any, are asserted in support of the defendants' proposition that they, as opposed to Centreview Holdings, have a cause of action against the plaintiff arising out of the alleged fraud concerning Centreview Holdings.
The plaintiff submits that, in any event, there are no assertions of fraudulent conduct on the part of the plaintiff after 2006, and the counterclaim the defendants seek to advance is barred by the terms of the Deed and also by statute, all and any applicable limitation periods having expired long ago.
The plaintiff also refers to the 20 March 2006 Letter,[111] from which the plaintiff says it is clear the defendants were aware, at that time, of the facts giving rise to the alleged fraud and claims sought to be advanced in the counterclaim. This contrasts with the defendants' submission that they only became aware of the fraud on Centreview Holdings in 2023 after receiving a copy of the transcript of Mr Dunn's District Court trial in July 2023.

Facts relevant to Centreview Holdings

[111] Second White Affidavit [4] ‑ [5], 'NRW‑7', an unredacted copy of which was tendered by consent, Exhibit 4.

The facts I find for the purpose of the Applications, on the admissible evidence adduced in relation to Centreview Holdings are as follows.
In or around January 1996, BNZA made an overdraft facility available to Centreview Holdings (Centreview Facility). Of the defendants to this proceeding, only the first defendant, Keith Jackson, had any connection with Centreview Holdings and the Centreview Facility. He was a director of Centreview Holdings between 2 January 1996 and 11 September 1998,[112] when Centreview Holdings was deregistered.[113]
[112] Second Pontifex Affidavit [6] 'JDP-23', page 8.
[113] Second Pontifex Affidavit [6] 'JDP-23', page 7.
The first defendant guaranteed the Centreview Facility in an amount limited to $110,000 (Centreview Guarantee) and provided a mortgage over the whole of the land described in Certificate of Title Volume 2051 Folios 519 and 521, being properties situated at lots 31 and 33 West Boundary Road, Manjimup, as security for the Centreview Facility[114] (Centreview Mortgage).
[114] Second Pontifex Affidavit [7(1)-(3)].
The other defendants were not party to the Centreview Facility, Centreview Guarantee or Centreview Mortgage.[115]
[115] Second Pontifex Affidavit, [8(2)].
In about May 1997, BNZA transferred its banking business to the plaintiff pursuant to the Bank Mergers (National Australia Bank and Bank of New Zealand) Regulations 1997 (WA). As a result, from 30 June 1997, any contracts and rights as between Centreview Holdings and BNZA were binding and enforceable as between Centreview Holdings and the plaintiff.[116]
[116] Second Pontifex Affidavit [7(4)]; Bank Mergers (National Australia Bank and Bank of New Zealand) Regulations 1997 (WA) regs 2, 4(1), 5(1) and 6.
On 29 November 2002, the plaintiff sought to enforce its rights under the Centreview Guarantee and issued a notice of demand to the first defendant (and others).[117]
[117] Second Pontifex Affidavit, [8(3)]. The notice of demand issued to Centreview Holdings is the document marked KESJ-1 in Exhibit 5.
Separately, in March 2005, the plaintiff issued notices of default to Jackson Bros in respect of facilities held by them at that time.[118]
[118] Second Pontifex Affidavit, [8(4)].
On 20 March 2006, the first defendant sent the 20 March 2006 Letter to the plaintiff,[119] which contained allegations in respect of the Centreview Facility and Jackson Bros. That letter refers, amongst other things, to settlement of the matters now sought to be raised by the defendants by way of counterclaim.[120]
[119] Second White Affidavit [4] ‑ [5], 'NRW-7', an unredacted copy of which was tendered by consent, Exhibit 4.
[120] As summarised in [126].
On 24 March 2006, the plaintiff, the defendants trading as Jackson Bros and the first defendant, Keith Jackson (as Guarantor under the Centreview Guarantee), entered into the Deed.[121]
[121] Second Pontifex Affidavit 'JDP‑24'.
The recitals to the Deed set out the context in which the Deed was entered into and the relevant factual background to the subject matter of the agreement between the parties to it. They state:
A.In or about January 1996 the Bank [the plaintiff], at the request of the Guarantor [the first defendant], provided certain financial accommodation to Centreview Holdings Pty Ltd (Centreview).
B.[The first defendant] executed the Guarantee [Centreview Guarantee] to guarantee the due and punctual repayment by Centreview of all and any amounts owing by it to [the plaintiff].
C.Centreview is in default under the banking facility and [the first defendant] has made certain claims in relation to the conduct of [the plaintiff] relating to the provision of the facility to Centreview (Claims) which [the plaintiff] has not admitted but wishes to settle on an amicable basis.
D.[The plaintiff] has agreed to release the [the first defendant] from the [Centreview Guarantee] and to provide a discharge of the Mortgage [Centreview Mortgage] and [the first defendant] has agreed to settle the Claims on the terms and conditions set out in this Deed.
E.[The plaintiff] also provides the Facilities to the Borrowers [the defendants] which are secured by the Securities.
F.[The plaintiff] and [the defendants] have agreed to restructure the Facilities on the terms and conditions set out in this Deed.
The capitalised terms, including the 'Facilities', the 'Mortgage' and the 'Properties' referred to in the Deed are defined in the Deed.[122] The Facilities are made up of two loan facilities and an overdraft facility provided to the defendants trading as Jackson Bros by the plaintiff, as specified in the Deed. The 'Mortgage' is the Centreview Mortgage given to the plaintiff by the first defendant over 'Properties' owned by the first defendant in Manjimup, as described in the Deed.
[122] Second Pontifex Affidavit 'JDP-24', Deed cl 1.1 ('JDP-24' page 27).
As observed by Campbell JA in Franklins Pty Ltd v Metcash Trading Ltd,[123] the recitals to a deed or agreement are introductory. They generally include statements of the factual background to the transaction or matters the subject of the agreement.[124]
[123] Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; (2009) 76 NSWLR 603 (Franklins v Metcash).
[124] Franklins v Metcash [379] (Campbell JA).
In Franklins v Metcash, Campbell JA examined, by reference to the authorities, how recitals in an agreement or deed may be used in connection with the construction of the agreement or deed.[125] In summary, recitals may be used as an aid to construction of the operative terms of the relevant instrument, but do not form part of the agreement between the parties.[126]
[125] Franklins v Metcash [379] - [390].
[126] Franklins v Metcash [380], [389] ‑ [390]. See also Wright v Lemon [2024] WASCA 19 (Wright v Lemon) [536] ‑ [538], citing Franklins v Metcash [379] - [390], Schwartz v Hadid [2013] NSWCA 89 [80] ‑ [81], Lachlan v HP Mercantile Pty Ltd[2015] NSWCA 130; (2015) 89 NSWLR 198 [52] - [53] (Bathurst CJ, Beazley P & McColl JA).
I infer from the factual background set out in the recitals and the 20 March 2006 Letter, which preceded execution of the Deed, that the Deed relates to a compromise of the claims now sought to be agitated by the defendants in relation to the Centreview Facility and the alleged loss and damage claimed by the defendants in the counterclaim.
I do not repeat the contents of the 20 March 2006 Letter, which runs to six pages. It is sufficient to say, by way of summary, that it refers to the alleged fraud concerning the Centreview Facility, to Mr Dunn's conviction and to what it describes as 'a litany of wrongs' committed by the plaintiff in its relations with the defendants 'over the past ten years since the fraudulent misappropriation of the Centreview funds first occurred'. It also refers to loss caused when funding was declined in relation to an opportunity Jackson Bros had to purchase land containing a lime quarry. The letter also refers to demands made by the plaintiff in relation to what the defendants describe as 'alleged defaults' in respect of the Jackson Bros facilities and steps taken by the plaintiff to enforce those facilities and related securities.
By the Deed, the plaintiff agreed to provide a discharge of the Centreview Mortgage to the first defendant, as guarantor of that mortgage, and to restructure the earlier 'Facilities' held by Jackson Bros, as defined in the Deed. The first defendant (in his capacity as guarantor under the Centreview Guarantee), each of the defendants and the plaintiff agreed to release and discharge each other from all and any past, present and future claims.
Relevantly, the Deed includes the following terms:
2.DISCHARGE OF MORTGAGE AND RELEASE
…
2.2Upon execution of this Deed by the [the first defendant] and the [the plaintiff]:
2.2.1[the first defendant] hereby:
(a)releases and discharges [the plaintiff] and its servants, agents, officers and assigns from and against all causes of action, claims, demands or losses of any nature whatsoever which [the first defendant] has had, now has, or at any time hereafter may have or, but for the execution of this Deed, could, would or might have had against [the plaintiff] or any servant, agent, officer or assign of [the plaintiff], with respect to or arising out of the [Centreview Guarantee] or the Claims; and
(b)indemnifies [the plaintiff] and its servants, agents, officers and assigns at all times against any liability, claim or proceeding in relation to the [Centreview Guarantee] or the Claims and this Deed may be pleaded in bar to any proceedings that may be brought by [the first defendant] against [the plaintiff] in relation to the [Centreview Guarantee] or the Claims.
…
2.4For the avoidance of doubt, [the first defendant] and [the plaintiff] will be bound by all the provisions of this Deed other than the provisions contained in clause 3, even if this Deed is not executed by the Borrowers [the defendants] or any of them.
3.RESTRUCTURE OF FACILITIES PROVIDED TO THE BORROWERS
3.1Upon execution of this Deed by [the defendants], [the plaintiff] agrees that it will restructure the Facilities as follows:
(a)The Facilities will be refinanced as one fixed rate interest in advance facility with a term of 2 years (New Facility);
(b)The amount outstanding under the Facilities as at 24 March 2006 including principal, accrued interest, fees and charges is $729,662 (Amount Outstanding). The amount to be advanced under the New Facility will be calculated as at the date of drawdown pursuant to clause 3.3 and will include all interest, costs and charges that have accrued on the Amount Outstanding, less any repayments made, between 24 March 2006 and the date of drawdown.
[further provisions relating to interest, fees and charges payable in relation to the restructured 'New Facility' omitted]
…
3.3The provisions of this clause 3 will bind [the plaintiff] and [the defendants] with effect from the execution of this Deed by [the plaintiff] and all of [the defendants] and not before. [The defendants] must execute all the New Facility Documentation upon request by [the plaintiff] and must pay the interest on the New Facility. The New Facility will then immediately be drawn down and will [be] utilised to pay out the Facilities in full.
3.4[The plaintiff] recommends that [the defendants] take independent advice on the effect of this Deed before signing it.
3.5For the avoidance of doubt, if all of [the defendants] do not execute this Deed on or before 7 April 2006, and/or do not comply with the requirements set out in clause 3.3 regarding the execution of the New Facility Documentation and the payment of interest, then [the plaintiff] will be released from its obligations under this clause 3 and reserves all of its rights under the Facilities and Securities. The remainder of this Deed will continue to be binding on [the plaintiff] and [the first defendant] pursuant to clause 2.4.
3.6Upon execution of this Deed by [the plaintiff] and all of [the defendants]:
…
(b)[the defendants] release and discharge [the plaintiff] from and against all causes of action, claims, demands or losses of any nature whatsoever which [the defendants] or any [defendant] have had, now have, or at any time hereafter may have or, but for the execution of this Deed, could, would or might have had against [the plaintiff] with respect to or arising out of the Facilities, and this Deed may be pleaded in bar to any proceedings that may be brought by [the defendants] or any of them against [the plaintiff] in relation to the Facilities.
4INDEPENDENT LEGAL ADVICE
[The first defendant] acknowledges that:
(a)except as expressly provided in this Deed, [the first defendant] has not relied on any representation, warranty or undertaking of any kind made by or on behalf of [the plaintiff] in relation to any matter the subject of this Deed; and
(b)[the plaintiff] has recommended that [the first defendant] obtain his own independent legal, financial and other advice (as may be appropriate) in relation to the matters the subject of this Deed.
…
11.ENTIRE UNDERSTANDING
This Deed:
(a)is the entire agreement and understanding between the Parties on everything connected with the subject matter of this Deed;
(b)supersedes any prior agreement or understanding on anything connected with that subject matter.
(c)Each Party has entered into this Deed without relying on any representation by any other party or any person purporting to represent that party.
In April 2006, the plaintiff provided facilities to the defendants as contemplated by the Deed. The facilities were subsequently extended or varied on numerous occasions. The plaintiff did not issue any default notices to the defendants in relation to the facilities held by the defendants in the period between April 2006 and October 2019.[127]
[127] Second Pontifex Affidavit [8(7) - (9)].
As stated, the Facilities the subject of the plaintiff's claim in this proceeding (the Overdraft and Business Loan), were provided to the defendants pursuant to the Letter of Offer, which was signed by each of the defendants (in the case of the fourth defendant, by the late Garry James Jackson) on 31 March 2017.[128] The terms of the Business Loan were varied in August 2018, including to increase the facility limit to $774,000, as provided in the Letter of Variation.[129]
[128] First Pontifex Affidavit 'JDP-2' pages 52 - 54.
[129] First Pontifex Affidavit [12] 'JDP-3'.
The plaintiff agreed to extend the time for repayment of the Facilities numerous times as set out in [48] above. The defendants did not repay the amount owing under the Facilities and the plaintiff issued the Default Notice to the defendants on 23 February 2023.[130]

Consideration of the counterclaim

[130] First Pontifex Affidavit [23] - [27] 'JDP-17' - 'JDP-19'.

As has been noted, in the context of a summary judgment application, it is necessary that the defendants' affidavit condescend to particulars. It is not enough to swear that there has been a fraud. The defendants must provide 'such an extent of definite facts pointing to the fraud' or other defence alleged so as to satisfy the court that those are facts which make it reasonable to raise such a defence.[131]
[131] Moscow Narodny Bank (113). See also Westpac Banking Corp v Ninan[2014] WASC 456 [10] (Chaney J).

For the reasons that follow, the matters raised by the defendants do not give rise to a viable defence and I do not consider that position could be improved with any amendment. The evidence adduced does not reveal facts which could, if properly pleaded, form an arguable defence to the plaintiff's claim.
There is evidence to support the proposition that Mr Dunn was involved in fraudulent activity in or around the period between 1995 and 1997, though not necessarily in relation to the Centreview Facility. I accept the plaintiff's submission to the effect that the facts deposed to and the evidence adduced do not support the defendants' contention that Mr Dunn's activities adversely affected the Centreview Facility or Jackson Bros' (the defendants') facilities with the plaintiff.
The defendants have not adduced evidence to support their alleged claims, which are made in broad, unparticularised terms. This is particularly the case in relation to the alleged causes of action in deceit and unjust enrichment, which are merely referred to as causes of action with no facts stated to ground such claims. There is no cause of action for 'dishonesty' per se.
In any event, it is far from clear what connection the matters alleged in relation to the Centreview Facility have to the amounts due and owing to the plaintiff by the defendants in relation to the Facilities the subject of this proceeding. Even if it is accepted, for the purpose of the Applications, that there was fraud or other conduct on the part of BNZA or the plaintiff causing loss and damage to Centreview Holdings, there is no evidence of a causal relationship between such fraud or conduct and the Letter of Offer and Mortgage to give rise to an arguable defence to the plaintiff's claim against the defendants.
I accept the plaintiff's submission to the effect that there is no basis on the facts and evidence before the court from which any relationship can be derived between the Centreview Facility and the Facilities the subject of the plaintiff's claim, or of the plaintiff engaging in any fraudulent conduct or 'cover-up' in relation to any fraud on Centreview Holdings or Jackson Bros. Nor is there any basis on the material before the court for the defendants' alleged causes of action in deceit or unjust enrichment.
As submitted by the plaintiff, to the extent that Centreview Holdings was the victim of any fraud (or suffered loss as a result of any conduct by BNZA or the plaintiff), any such cause of action would be the subject of a claim by Centreview Holdings (which is deregistered). It is not a cause of action that is open to be pursued by the defendants. The same can be said in relation to any cause of action in deceit or unjust enrichment. Nor do the facts or evidence before the court support the claims made in relation to the historical Jackson Bros facilities.
In any event, as part of the restructure of those facilities as provided in the Deed, the defendants released and discharged the plaintiff from all causes of action, claims or losses in relation to the facilities.[132] The first defendant also released and discharged the plaintiff from all causes of action he had or may have with respect to or arising from the Centreview Facility and Centreview Guarantee.[133] In each case, the defendants agreed that the Deed may be pleaded as a bar to any proceedings that may be brought by them against the plaintiff. The plaintiff has made clear it will challenge the counterclaim on that basis if it proceeds and that it has a good defence on the merits.
[132] Second Pontifex Affidavit 'JDP-24': Deed cl 3.6(b) ('JDP-24' pages 29 - 30).
[133] Second Pontifex Affidavit 'JDP-24': Deed cl 2.2.1 ('JDP-24' page 28).
Even if there was a basis for the defendants to bring its alleged claims against the plaintiff, a counterclaim is to be distinguished from a set‑off. A counterclaim is not a defence to a plaintiff's claim, but an entirely independent action brought by a defendant against a plaintiff in the same proceedings. A counterclaim is used offensively, not defensively, as compared to a set-off, which has been described as 'a shield not a sword.'[134]
[134] Westwind Air Charter Pty Ltd v Hawker De Havilland Ltd (1990) 3 WAR 71 (Westwind Air), 85 (Murray J), referring to 'Equity: Doctrines and Remedies' (2^nd ed, 1983) RP Meagher QC, WMC Gummow and JRF Lehane (Equity: Do, ctrines and Remedies), page 768.
The defendants do not claim to have a right to set off the damages claimed by way of counterclaim. Even so, the existence of any such claim or claims would be for unliquidated damages, which could not be set off against the plaintiff's claim and would not, as submitted on behalf of the plaintiff, impeach the plaintiff's claim and entitlement to the relief it seeks.
As observed by Murray J in Westwind Air v Hawker De Havilland Ltd, at law a claim for an unliquidated sum could not be set off against a liquidated claim. So far as equitable set off is concerned, a defendant could only establish such by bringing a claim which impeaches that of the plaintiff. It is not sufficient that there be countervailing claims, nor that the claims be mutual, nor even that they arise out of the same transaction. To make out an equitable set-off, a defendant must establish that he possessed some equitable right to be protected from the plaintiff's claim.[135]
[135] Westwind Air (84 ‑ 85) (Murray J), referring to Equity: Doctrines and Remedies, page776, cited with approval in Goh v First Industries Corp [2002] WASCA 341 [16] (Wheeler J), [1], [18] (Templeman J & Rolfe AJ agreeing).
I am not satisfied the facts relied upon by the defendants or the evidence before the court supports that any such equitable right or set off arises so as to operate as a defence to the plaintiff's claim.
As noted, the plaintiff raises a further difficulty with the counterclaim. That is that, in addition to the contractual bar that operates under the terms of the Deed, any claims of the nature sought to be advanced by them are statute barred. The claims have not been brought before the court within the time for bringing such claims and the plaintiff has made it clear that it will rely on the applicable limitation periods as a bar to the relief or remedies sought in relation to them.
The matters said to give rise to the defendants' claims are alleged to have occurred between 1995 and 2006, a period spanning 11 to 22 years before the defendants entered into the agreement for the Business Loan and Overdraft with the plaintiff by executing the Letter of Offer on 31 March 2017. The defendants filed their counterclaim on 4 December 2023, 27 years after the alleged fraud by BNZA in 1996, and approaching 18 years after 2006.
I consider the limitation issues in the next section of these reasons concerning the O 16 Summary Judgment Application. For the reasons set out there, in my view, the plaintiff's point has force and gives rise to a good defence on the merits to the counterclaim. However, as stated, I do not consider that the Applications turn on the plaintiff making good its limitation defence - that the defendants' claims are statute‑barred. For the reasons stated above, the counterclaim does not, in my view, raise an arguable defence and the plaintiff has demonstrated that it has a good defence to it on the merits by reason of the contractual bar.

Conclusion and orders - O 14 Summary Judgment Application

For these reasons, I am satisfied that:
(a) the plaintiff should have leave to bring the Applications and that the time to do so be extended to 16 November 2023, the date it was filed;
(b) the plaintiff has complied with the procedural requirements for an application for summary judgment and made out a prima facie case;
(c) the defendants have not discharged their evidentiary burden of establishing that there is an arguable defence to the plaintiff's claim, an issue or question to be tried, or some other reason why there ought to be a trial of the action; and
(d) this is a clear case in which it is appropriate to enter summary judgment on the plaintiff's claims.
Orders should be made entering judgment for the plaintiff for the amount owing under the Facilities and for possession of the Property. The plaintiff is to file further evidence to update and verify the amount due and payable under the Business Loan and Overdraft. I will then hear from the parties as to the final form of the orders to be made.

O 16 Summary Judgment Application

The plaintiff submits that the counterclaim is so clearly untenable that it could not possibly succeed at trial, that the plaintiff has a good defence on the merits and summary judgment dismissing the counterclaim ought to be ordered pursuant to O 16 RSC.
The allegations and claims made by the defendants by way of counterclaim, the facts relating to Centreview Holdings, the Centreview Facility and Centreview Mortgage, the applicable principles and my consideration of the counterclaim are set out earlier in these reasons.
As referred to, as a matter of practice, an application for summary judgment should ordinarily be determined on the basis that the version of the facts put forward by the party opposing the application, assuming that it is not inherently incredible, can be established at the trial of the action. However, the court is not bound to accept uncritically, as raising a factual dispute calling for further investigation, every statement in an affidavit or, relevantly, pleaded in a counterclaim.[136]
[136] Pisano [52.5], [53] - [54].
As noted in relation to the O 14 Summary Judgment Application, because the defendants are self-represented, on an application for summary judgment, the court should be astute to ensure that there is no viable cause of action in the counterclaim which, with appropriate amendment or permissible assistance from the court, could be put into proper form.
As referred to earlier in these reasons, the counterclaim makes broad allegations. The facts pleaded in it do not support the plaintiff's claims or make out any clear, viable cause of action against the plaintiff. These are not matters of form or that are capable, in my view, of being remedied by amendment to the pleading or with any permissible assistance. The Jackson Affidavit does not condescend to particulars. It does not set out facts which establish that it is reasonable to allow the defendants to pursue the counterclaim. Nor does the evidence adduced demonstrate the existence of a triable issue.
The defendants have no cause of action in relation to any claim that may have accrued to Centreview Holdings. Even if the defendants were to satisfy their evidentiary onus regarding their allegation that the plaintiff had acted fraudulently with respect to the facilities held by Jackson Bros prior to 2006, there is no evidence or basis for the bare assertions to the effect that the Facilities (the subject of the plaintiff's claim in this proceeding) are tainted by fraud or other conduct of the plaintiff alleged to have occurred between 1995 and 2006.
In any event, and critically for the defendants, they have by the Deed discharged and released the plaintiff from the claims they now seek to bring in the counterclaim. They have agreed that the Deed may be relied upon by the plaintiff as a bar to any proceedings brought by them, and the plaintiff has made clear that it will rely upon that contractual bar.
Neither the counterclaim nor the Jackson Affidavit disclose any basis for the defendants' contention that the Deed was entered into by them under duress and threatened legal action. Nor do they disclose any arguable case for duress. There are no facts stated in relation to the critical elements:[137]
(a)that pressure was applied to each of them, and this was one of the reasons why they entered into the Deed; and
(b)that the pressure was illegitimate, so as to negate their consent.
[137] Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 (Crescendo Management), 45 ‑ 46; Electricity Generation Corporation t/as Verve Energy v Woodside Energy [2013] WASCA 36 [24].
Mere commercial pressure, even overwhelming pressure, will not necessarily constitute duress. An absence of choice does not constitute duress and does not negate consent.[138] A threat by a creditor to enforce an agreement or security, institute legal proceedings, or pursue another legal remedy does not ordinarily constitute duress.[139]
[138] Barton v Armstrong [1976] AC 104, 121; Crescendo Management (45 ‑ 46).
[139] See McKay v National Australia Bank Ltd [1998] 4 VR 677, 690, and the authorities referred to.
I am satisfied that the contractual bar under the terms of the Deed provides the plaintiff with a good defence on the merits and that the counterclaim cannot succeed.
The plaintiff raises a further reason in support of its submissions that it has a good defence on the merits and the counterclaim should be summarily dismissed. The plaintiff pleads,[140] and submits, that the defendant's alleged causes of action are statute-barred by s 38 of the Limitation Act 1935 (WA).
[140] Amended reply and defence to counterclaim filed 18 December 2023 (Amended reply and defence to counterclaim) [3A(c)].
In my view, it is not strictly necessary to consider this additional defence to the counterclaim as, on the materials before the court, I am satisfied the plaintiff has demonstrated that the counterclaim should not be permitted to go to trial in the ordinary way because it is apparent that it will not succeed. In the circumstances, it is not an appropriate case to proceed to trial and should be summarily dismissed.
However, for completeness, I have considered the further limitation defence raised by the plaintiff and the submissions made by the parties in relation to that issue. As I have already said, the facts stated and evidence adduced do not, in my view, disclose viable causes of action. Nor is it apparent on what basis any cause of action accrues to the defendants in relation to the alleged fraud concerning the Centreview Holdings Facility. Nothing I say in considering the limitation issue should be construed as diverting from those views.

The further limitation defence ‑ whether the defendants' claims are statute barred

The plaintiff accepts, as is the case, that as a matter of principle, it is 'undesirable for limitation questions [to] be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases'.[141]However, it submits this is such a clear case.
[141] Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514, 533 (Mason CJ, Dawson, Gaudron & McHugh JJ).
The plaintiff submits that any cause of action in relation to the alleged fraud or otherwise arising from the plaintiff's alleged conduct (which it denies) expired long ago. The matters said to give rise to the defendants' claims are alleged to have occurred between 1995 and 2006, a period spanning 11 to 22 years before the defendants entered into the agreement for the Business Loan and Overdraft by executing the Letter of Offer on 31 March 2017.
The plaintiff says the causes of action alleged cannot have arisen any later than 2006. The plaintiff says it is clear from the 20 March 2006 Letter that the facts which now form the basis of the allegations in the counterclaim have been within the defendant's knowledge since at least 2006. The plaintiff did not file the counterclaim until 4 December 2023, 27 years after the alleged fraud by BNZA and approaching 18 years after 2006.
Where the court is satisfied that the position is clear, a limitation question can be determined in interlocutory proceedings.[142] For the reasons that follow, I am satisfied this is such a case and it is appropriate for me to do so.
[142] Lovell v The Western Australian Police Union of Workers [2004] WASC 19 [23] (Sanderson M), upheld on appeal: Lovell v Western Australian Police Union of Workers [2009] WASCA 34 [1], [46] (Owen JA, Steytler P agreeing), [104] (Pullin JA) (Lovell); National Australia Bank Ltd v Taylor [2003] WASC 240 [15] - [17] (Sanderson M), appeal dismissed: Young v National Australia Bank Ltd [2004] WASCA 298; (2004) 29 WAR 505 (Murray & Barker JJ).
The limitation periods provided for under the Limitation Act 2005 (WA) (the 2005 Act) apply to causes of action that accrue on or after commencement of that Act, being 15 November 2005.[143] Subject to exceptions that are not presently relevant, where a cause of action accrued before 15 November 2005, the Limitation Act 1935 (WA) (the 1935 Act) applies.[144]
[143] Limitation Act 2005 (WA) ss 2 and 4.
[144] Ex parte Gates [36]. See also Wright v Lemon [1110] (Buss P, Vaughan & Hall JJA agreeing).
In general terms, the Western Australian Limitation Acts provide that an action may not be brought after the expiry of a specified period of time from the date on which a cause of action accrued. In simple terms, a cause of action accrues when all the facts have occurred which give rise to a right to sue,[145] or entitle a person to obtain a remedy from a court against another person.[146]
[145] Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234, 245 (Wilson J).
[146] Letang v Cooper [1964] 3 WLR 573; [1964] 2 All ER 929 (CA); [1965] 1 QB 232, 242 ‑ 243 (Diplock LJ).
The effect of a limitation period having run is to bar the remedy rather than the right. As observed by Vaughan J (as his Honour then was) in Ex parte Gates,[147] the Western Australian Limitation Acts do not operate to extinguish the cause of action but may be pleaded by a defendant as a bar to a claim by way of defence to the remedy or relief sought.[148]
[147] Ex parte Gates [37].
[148] See also Wright v Lemon [1095], referring to The Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394, 405, 473 ‑ 474; The Commonwealth v Mewitt [1997] HCA 29; (1997) 191 CLR 471, 534 ‑ 535 (Gummow & Kirby JJ).
Whether the cause of action accrued before or after 15 November 2005, the limitation period for a cause of action in the tort of deceit or common law fraud is six years after the cause of action accrued.[149] A claim for unjust enrichment is treated as a claim in 'quasi contract'.[150] The limitation period for a cause of action in unjust enrichment is also six years.[151]
[149] Limitation Act 2005 (WA) s 13(1); Limitation Act 1935 (WA) s 38(1)(c)(vi), (vii); Wright v Lemon [1111], [1113]. 'Limitation of Actions, The Laws of Australia', (4^th ed Thomson Reuters, 2017) P Handford (Limitation of Actions) [5.10.800], page 98.
[150] Limitation of Actions [5.10.720], pages 88 - 89. See also Sims v Commonwealth of Australia [2022] NSWCA 194 [79], [147] - [151], (Bell CJ, Meagher & White JJA), [156] (White JA), which although considers the relevant provisions of the Limitation Act 1969 (NSW) applies by parity of principle.
[151] Limitation of Actions, [5.10.720], page 88; [5.10.730], page 90. See also Sims v Commonwealth of Australia [79] (Bell CJ), [147] - [151], [127] (Meagher JA), [153], [156] (White JA), which although considers the relevant provisions of the Limitation Act 1969 (NSW) applies by parity of principle; Limitation Act 2005 (WA) s 13(1); Limitation Act 1935 (WA) s 38(1)(c)(v).
To the extent any claim for relief is brought in equity, where the equitable claim corresponds to an action in law to which a statutory limitation period applies, equity will apply the statutory limitation period by analogy. As observed in Wright v Lemon:[152]
1096Traditionally, causes of action in equity were not within the limitation statutes. However, equity developed the doctrine of laches and the doctrine of applying statutory limitation periods by analogy.
1097Where there is a corresponding remedy at law in respect of the same matter and the remedy at law is barred by a limitation statute, equity will apply the statutory bar by analogy unless reliance by the defendant on the statutory bar would in the circumstances be unconscionable. See Gerace [70]; Sze Tu [363] - [364].[153]
[152] Wright v Lemon [1096] - [1097]. See also Lovell [69] (Owen JA, Steytler P agreeing); Motor Terms Co Pty Ltd v Liberty Insurance Ltd (in liq) (1967) 116 CLR 177, 184 (Kitto J).
[153] Being references to Geracev Auzhair Supplies Pty Ltd [2014] NSWCA 181; (2014) 87 NSWLR 435 [70]; Sze Tu v Lowe [2014] NSWCA 462; (2014) 89 NSWLR 317 [363] - [364].

The application of a statutory limitation period by analogy will only apply where statute does not apply directly to an equitable claim.[154] Where no statute applies directly, the question of analogy turns on the particular facts giving rise to the equitable claim.[155] The Court of Appeal in considering this issue in Wright v Lemon, stated:
1116A determination of whether a statutory limitation period is applicable directly to a common law claim or is applicable by analogy to an equitable claim must be made by reference to the relevant facts that are found by the trial judge or that are not in contest. That explains why it is undesirable that limitation questions be decided in interlocutory proceedings in advance of the trial (except in the clearest of cases) and why the application of a limitation statute by analogy will very rarely result in a summary dismissal of a proceeding. See Wardley Australia Limited v The State of Western Australia; Young v Waterways Authority of New South Wales; In de Braekt v Powell.[156]
[154] Wright v Lemon [1106], [1109], citing Lewis Securities Ltd (in liq) v Carter [2018] NSWCA 118 (Lewis Securities) [32] (Leeming JA).
[155] Wright v Lemon [1107], [1109] citing Lewis Securities [34] - [35]; Dewar v Ollier [2020] WASCA 25 (Dewar v Ollier) [167].
[156] Referring to Wardley Australia Limited v The State of Western Australia [1992] HCA 55; (1992) 175 CLR 514, 533 (Mason CJ, Dawson, Gaudron & McHugh JJ); Young v Waterways Authority of New South Wales [2002] NSWSC 612 [22], [27] - [29] (Burchett AJ); In de Braekt v Powell [2007] WASCA 55; (2007) 33 WAR 389 [30] (Buss JA).
There is no limitation period in the 1935 Act that applies directly to equitable fraud or to any claim brought in equity.
Section 13(1) of the 2005 Act has a catch‑all provision applicable to all causes of action for which no specific provision is made in that Act, and which provides the limitation period for such causes of action is six years. Section 27 of the 2005 Act displaces that provision if equity would apply another provision by analogy and provides a limitation period for equitable actions which are not analogous to other actions of six years from when the cause of action accrued or three years since time started running, on equitable principles.[157]
[157] Limitation Act 2005 (WA) s 27; Wright v Lemon [1106] citing Lewis Securities [31].
As best as can be discerned from the scant pleas and facts deposed to in support of the defendants' claims, whether they are made in deceit, common law fraud, unjust enrichment or in equity, they are founded upon the same facts. As such, however the claims are framed the limitation period that applies to them is six years from when the cause of action accrued, any claim in equity being analogous to those to which a statutory six-year limitation period applies.[158]
[158] See Wright v Lemon [1108], [1109], [1115] - [1116]; Dewar v Ollier [167].
The defendants do not clearly articulate when they allege the causes of action relied upon, in each case, accrued. Although, they assert that the plaintiff concealed the fraud and, in effect, that the limitation period had not started to run in at least 2006, as contended by the plaintiff.
The defendants submitted that they did not become aware of all the facts and the extent of their claims until receiving a copy of the transcript of Mr Dunn's criminal trial in October 2023. They say that soon after they obtained further information (from Douglas Burkett Green and Stephen Patrick Bowen)[159] and filed the counterclaim shortly after that on 4 December 2023.
[159] Exhibits 2 and 3.
I share the views expressed by Pullin JA in relation to a similar argument advanced in Lovell v Western Australian Police Union of Workers[160] that the defendants' contentions fail to draw the necessary distinction between a cause of action and the evidence on which the claimant proposes to rely to establish the cause of action. It is the essential facts, not the evidentiary detail, that is relevant to determining when a cause of action accrues for the purposes of the limitation statute.[161]
[160] Lovell [79].
[161] Lovell [81].
As observed by Pullin JA in Lovell, the Limitation Acts relate to causes of action, not to evidentiary material, and time begins to run once the cause of action has accrued. Although the defendants may not have known of the material referred to in the counterclaim and now sought to be relied upon, I cannot accept the submission that the cause of action did not accrue until 2023.
Rather, I accept the plaintiff's submissions to the effect that the 20 March 2006 Letter discloses that the facts upon which the alleged causes of action in the counterclaim are based[162] were within the defendants' knowledge by 2006 at the latest. On the facts alleged and the evidence before the court, it is apparent that the defendants were aware of the loss and damage alleged to have been suffered and the facts upon which the claims are based by 2006.
[162] As summarised in [127].
To the extent the defendants claim the Deed is void or should be set aside, the cause of action accrued at the time of entering into the Deed, 24 March 2006.
Two further submissions were made on behalf of the defendants as to why the limitation period had not expired at the time the counterclaim was filed, which I should also address, for completeness.
The first of those was, in effect, that their cause of action arises under the criminal law as the alleged fraud is an indictable offence to which no limitation period applies. That submission is without merit. The defendants have no such cause of action. Any criminal prosecution is a matter for the Director of Public Prosecutions and brought by the State of Western Australia, or in certain circumstances by the Commonwealth Director of Public Prosecutions. It is not an action that can be brought by an individual or other entity.
The second was that the defendants' cause of action relates to a mortgage and arises under a speciality or deed to which a limitation period of 20 years applies.
Section 38(1)(e)(i) of the 1935 Act provides that a cause of action for debt on a bond or other speciality that accrued before 15 November 2015 must be commenced within 20 years of the cause of action accruing.
Although a specialty may denote a contract under seal, which would include a deed, the term is usually used to mean a specialty debt. Relevantly, a specialty debt is an obligation under seal securing a debt and, in this context, refers to an action to enforce obligations created or secured by a specialty or to recover damages for breach of such an obligation.[163]
[163] Limitation of Actions, (pages 86 - 87) [5.10.710] and the authorities referred to.
Under s 18 of the 2005 Act, the limitation period for all actions founded on a deed is 12 years from the date the cause of action accrues. Whether under the 1935 Act or the 2005 Act, the cause of action for breach of an obligation under a deed accrues at the time of breach in the same way as for a simple contract.[164] In claims for breach of contract, the cause of action accrues at the time of the breach of contract, as opposed to when any loss or damage is suffered.[165]
[164] Barker v Duke Group Ltd (in liq) [2005] SASC 81, [168] (White J) citing The Millstream Pty Ltd v Schultz [1980] 1 NSWLR 547; Sheldon v McBeath (1993) Aust Tort Reports 81 ‑ 209 at 62,076 (Handley JA). See also Amott v Holden (1852) 18 QB 593; 118 ER 224; Spoor v Green (1874) LR 9 Ex 99; Turner v Moon [1901] 2 Ch 825.
[165] Dewar v Ollier [2018] WASC 212 [290] - [292] (affirmed on appeal in Dewar v Ollier [2020] WASCA 25); Hawkins v Clayton (1988) 164 CLR 539, 583.
It is entirely unclear when it is alleged by the defendants that any cause of action under a deed accrued. The allegations made by the defendants do not relate to breach of any obligations secured by or under a deed or mortgage. Rather, it appears what is alleged is that the Mortgage the subject of the plaintiff's claim was entered into because of alleged fraudulent conduct or deceit on the part of the plaintiff. However, the facts stated and evidence before the court do not make out such a claim.
To the extent the defendants claim the Deed is void or should be set aside, any such claim should have been commenced within 12 years of entering into the Deed. The limitation period in respect of any such claim expired in March 2018.
The counterclaim was not filed until 4 December 2023, long after expiry of any applicable limitation period. The claims are therefore statute barred. The plaintiff has made clear it will rely on the statutory bar.
For these reasons, this is a case in which it is clear the claims sought to be advanced in the counterclaim are statute‑barred and it should not be permitted to proceed to trial.

Conclusion and orders - O 16 Summary Judgment Application

I am mindful of the need to exercise care before summarily dismissing a claim, and I acknowledge that a party should not ordinarily be denied the opportunity to have their case determined following a trial. However, for the reasons given, I am satisfied that this is a case in which the plaintiff, as applicant, has demonstrated that it has a good defence on the merits to the counterclaim and there is no real question to be tried on any of the causes of action raised by the defendants.
In the circumstances, it would not be an appropriate case to proceed to trial and should be summarily dismissed. The O 16 Summary Judgment is therefore allowed, and orders will be made dismissing the counterclaim.

Strike Out Application

Having summarily dismissed the defendant's counterclaim under O 16 RSC, it is not necessary that I determine the alternative Strike Out Application. However, for completeness, I am satisfied, for the reasons already articulated and summarised below, that the counterclaim should be struck out.
The counterclaim does not serve one of the primary purposes of a pleading, which is to adequately inform the plaintiff of the case it has to meet.
The allegations in the counterclaim are pleaded at too high a level of generality. It is ambiguous, not reasonably intelligible, raises immaterial and irrelevant issues, fails to confine the issues and to state the defendant's case with reasonable particularity.
I am not satisfied on the material before the court that it would be open to the defendants (on their pleading) to prove the facts at trial which would constitute a viable cause of action.
In the circumstances, and particularly where the plaintiff has demonstrated that it has a good defence on the merits to the counterclaim, it would be contrary to case management principles and the efficient and economical use of public and private resources to allow the counterclaim to proceed to trial.

Conclusion and orders

For these reasons:
(a)the plaintiff has leave to bring the O 14 Summary Judgment Application, the time for which is extended to the date of filing;
(b)the O 14 Summary Judgment Application and the O 16 Summary Judgment Application are allowed;
(c)judgment will be entered for the plaintiff against the defendants; and
(d)orders will be made for the Mortgagors to deliver up possession of the Property to the plaintiff.
I will hear from the parties as to the final form of orders and in relation to costs, following filing and service of a further affidavit by the plaintiff verifying the amount due and payable under the Business Loan and Overdraft.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
BF
Associate to the Hon Master Russell
14 JANUARY 2025