Permanent Custodians Limited v Archer

[2009] WASC 363

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   PERMANENT CUSTODIANS LIMITED -v- ARCHER [2009] WASC 363

CORAM:   MASTER SANDERSON

HEARD:   19 NOVEMBER 2009

DELIVERED          :   7 DECEMBER 2009

FILE NO/S:   CIV 2086 of 2009

BETWEEN:   PERMANENT CUSTODIANS LIMITED

Plaintiff

AND

GREGORY JOHN ARCHER
First Defendant

VANESSA KERAN ARCHER
Second Defendant

Catchwords:

Summary judgment - Application based on mortgage - Application to State Administrative Tribunal by defendants under Consumer Credit (Western Australia) Act 1996 (WA) - Whether 'some other reason' why judgment might not be entered - Turns on own facts

Legislation:

Nil

Result:

Judgment entered

Category:    B

Representation:

Counsel:

Plaintiff:     Mr B W Ashdown

First Defendant             :     Mr S B Green

Second Defendant         :     Mr S B Green

Solicitors:

Plaintiff:     Galilee Solicitors

First Defendant             :     Havilah Legal

Second Defendant         :     Havilah Legal

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

Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109

1. MASTER SANDERSON:  This is the plaintiff's application for summary judgment.  The plaintiff loaned and advanced money to the defendants pursuant to a loan contract and a mortgage.  The mortgage is registered over the defendants' property at 5 Grove Park Lane, Pinjarra.  The amount of the loan was $511,013.  These matters are pleaded in pars 1 ‑ 9 of the plaintiff's statement of claim and are admitted by the defendants.

2. By pars 10 ‑ 14 of the statement of claim the plaintiff pleads the defendants were in default under the loan contract and the mortgage.  They say default notices were issued and there has been a failure to comply with those default notices.  The plaintiff seeks judgment for the amount outstanding under the loan agreement together with accrued interest.  The plaintiff also seeks possession of the Pinjarra property.  The defendants have lodged a defence.  They do not deny any of these paragraphs.  They simply do not admit the plaintiff's plea.

3. In opposition to the application the defendants have filed three affidavits of the first defendant - one sworn 18 September 2009, one sworn 20 October 2009, and the last sworn 17 November 2009.  None of these three affidavits makes any attempt to explain in any way what the defendants' defence to the plaintiff's claim might be.  What the affidavits show is that the plaintiff has made an application to the State Administrative Tribunal (the Tribunal) for relief under the Consumer Credit (Western Australia) Act 1996 (WA) (the Act). By s 7(1)(a) of the Act the Tribunal has exclusive jurisdiction to deal with s 68 ‑ s 72 of the Act.

4. Section 71 of the Act gives the Tribunal wide and extensive powers to set aside an unjust contract.  In particular, s 71(c) says that the Tribunal may

   set aside either wholly or in part or revise or alter an agreement made or mortgage given in connection with the transaction.

5. There is no indication in any of the affidavits why the defendants say that the Tribunal ought set aside the transaction.  Appearing as annexure GA2 to the first defendant's affidavit of 17 November 2009 is a document entitled 'Statement of Issues, Facts and Contentions' which has been filed with the Tribunal at the direction of the presiding member.  As I understand this document, the defendants are alleging there was some conduct on the part of a mortgage broker connected with the plaintiff which was fraudulent.  Quite how it was fraudulent, what mischief was perpetrated by the brokers, and how the plaintiff was implicated in the transaction is unclear from the document.  No attempt has been made to explain the defendants' position in the affidavit material. 

6. The scheme of O 14 is well understood and has been discussed in any number of cases.  A plaintiff is required to verify on affidavit the facts contained in the statement of claim.  Once that step has been taken, the evidentiary onus - not the legal onus, but the evidentiary onus - shifts to the defendant.  The defendant must show they have an arguable defence.  Any defendant is entitled to have the version of facts most favourable to him accepted for the purposes of the argument.  But a defendant must 'condescend upon particulars':  see Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109. If a defendant does not take that step then a plaintiff is entitled to judgment. It would appear in this case the defendants say that as there is a possibility the Tribunal will in some way intervene in a contractual relationship between the plaintiff and the defendants, judgment ought not be entered. What the defendants are doing is relying on O 14 r 3(1) to argue '… that there ought for some other reason to be a trial of … [the] claim …'.

7. In my view, if that argument was to succeed the evidence put on by the defendants would need to go to precisely what it is that could lead the Tribunal to interfere with the contractual arrangement between the parties.  It is not enough simply to say there is an application before the Tribunal and some orders may be made.  That is not evidence; that is speculation.  In the absence of some evidence from the defendants the plaintiff is entitled to its judgment.

8. I will hear the parties as to the precise form of orders and as to costs.