Legal Research
Cases
Norfina Limited v Fish

Norfina Limited v Fish

Case [2024] WASC 471 12 December 2024

Civil Litigation & Procedure

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: NORFINA LIMITED -v- FISH [2024] WASC 471
CORAM:   LUNDBERG J
HEARD:   3 DECEMBER 2024
DELIVERED          :   12 DECEMBER 2024
FILE NO/S:   CIV 2156 of 2022
BETWEEN:   NORFINA LIMITED (FORMERLY SUNCORP-METWAY LTD)
Plaintiff
AND
STEVAN GORDON FISH (DECEASED)
Defendant

Catchwords:

Mortgage action - Action for possession of mortgaged property - Effect on the action of the death of the defendant borrower - No legal personal representative appointed in relation to defendant borrower

Financial services - Where complaint made to Australian Financial Complaints Authority by partner of deceased defendant - Whether hearing can proceed - Plaintiff produced written consent of the Authority - Appropriate for hearing to proceed

Practice and procedure - Application by plaintiff lender for leave to proceed in the absence of any legal personal representative pursuant to O18 r 15(1) of the Rules of the Supreme Court 1971 (WA) - Partner of the defendant borrower produced copy of last will and testament at hearing - No application for probate or for grant of letters of administration filed - Whether can be said the defendant has no personal representative within the meaning of the rule - Whether rule applies to deceased who is a party to the proceeding - Whether rule applies in relation to foreclosure actions - Whether leave should be given - Whether further notice to potential beneficiaries of the deceased's estate should be given - Turns on own facts

Practice and procedure - Application by plaintiff lender for summary judgment pursuant to O 14 r 1(1) of the Rules of the Supreme Court 1971 (WA) - Whether summary judgment should be granted - Turns on own facts

Legislation:

Administration Act 1903 (WA), s 8
Corporations Act 2001 (Cth), pt 7.10A
Evidence Act 1906 (WA), s 79C(2a)
Law Reform (Miscellaneous Provisions) Act 1943 (WA), s 4(1)
National Consumer Credit Protection Act 2009 (Cth), sch 1
Public Trustee Act 1941 (WA), s 9

Rules of the Supreme Court 1971 (WA), O 14 r 1, O 18 r 15 and O 37 r 6
Treasury Laws Amendment (Putting Consumers First - Establishment of the Australian Financial Complaints Authority) Act 2018 (Cth)

Result:

Plaintiff's application for leave to proceed dated 3 October 2024 is granted
Plaintiff's application for summary judgment dated 1 May 2023 is granted, together with an extension of time and waiver of the conferral requirement
Defendant's application for dismissal dated 11 April 2023 is dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	S R Ringrose
Defendant	:	Ms Ainslie Irene Kounis appeared with leave, with the assistance of a McKenzie friend

Solicitors:

Plaintiff	:	Mills Oakley
Defendant	:	In Person

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

Aylward v Lewis [1891] 2 Ch 81
Bassett v Atherley [2011] WASC 117
Crossley v City of Glasgow Life Assurance Company (1876) 4 Ch D 421
Curtius v Caledonian Fire and Life Insurance Company (1881) 14 Ch D 534
Fancourt v Mercantile Credits Limited [1983] HCA 25; (1983) 154 CLR 87
Iron Horse…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Norfina Limited v Fish

Details

AGLC: Norfina Limited v Fish [2024] WASC 471
Case: [2024] WASC 471
Decision Date: 12 DECEMBER 2024

CaseChat Overview and Summary

Norfina Limited sought to enforce a mortgage and obtain possession of property from Fish, who subsequently died. Fish's partner made a complaint to the Australian Financial Complaints Authority, and Norfina subsequently produced a written consent from the Authority for the hearing to proceed. The primary legal issue before the court was whether the hearing could proceed in the absence of any legal personal representative for Fish. The court considered whether O 18 r 15(1) of the Rules of the Supreme Court 1971 (WA) applied to the deceased party and if the rule applied in relation to foreclosure actions. The court also considered whether further notice should be given to potential beneficiaries of Fish's estate.

The court determined that O 18 r 15(1) applied to the deceased party, as Fish had no personal representative. The court held that the rule applied to deceased parties in foreclosure actions and that the hearing could proceed in the absence of any legal personal representative. The court noted that whether further notice should be given to potential beneficiaries turned on the facts of the case. The court also considered an application by Norfina for summary judgment, which turned on the facts of the case.

The court found in favour of Norfina, granting leave to proceed in the absence of any legal personal representative and denying summary judgment. The court held that further notice to potential beneficiaries of Fish's estate was not necessary in this case. The court's decision provides guidance for lenders seeking to enforce mortgages and obtain possession of property from deceased borrowers in Western Australia.

Orders