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

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.
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.
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.
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.
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…

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 Permanent Custodians Limited v Archer

Details

AGLC: Permanent Custodians Limited v Archer [2009] WASC 363
Case: [2009] WASC 363
Decision Date: 7 DECEMBER 2009

CaseChat Overview and Summary

Permanent Custodians Limited applied to the State Administrative Tribunal for summary judgment against the defendants, Archer, in relation to a mortgage. The dispute arose from the defendants' alleged failure to repay a loan secured by a mortgage. The case was heard by the tribunal under the Consumer Credit (Western Australia) Act 1996. The defendants applied to set aside the judgment, arguing there were grounds under the Act for the tribunal not to enter judgment against them.

The key legal issue the tribunal had to determine was whether there were any other reasons, aside from the application for summary judgment, that might prevent the tribunal from entering judgment against the defendants. This involved an assessment of the specific facts of the case and the provisions of the Consumer Credit (Western Australia) Act 1996. The tribunal examined whether there were any provisions in the Act that could provide a defence to the claim or any other reason that would justify not entering judgment against the defendants.

The tribunal found that there were no other reasons, based on the facts and the Act, that would prevent it from entering judgment against the defendants. It held that the defendants had not provided any evidence or argument that would support a departure from the usual process of granting summary judgment in the circumstances. Consequently, the tribunal dismissed the application to set aside the summary judgment.

The tribunal ordered that judgment be entered against the defendants as sought by the plaintiff. The tribunal confirmed that the defendants were liable to repay the outstanding loan amount and any associated costs as per the terms of the mortgage.

Orders