Permanent Custodians Ltd v Thompson

[2010] WADC 16

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   PERMANENT CUSTODIANS LTD -v- THOMPSON [2010] WADC 16

CORAM:   PRINCIPAL REGISTRAR GETHING

HEARD:   2 FEBRUARY 2010

DELIVERED          :   Delivered Extemporaneously on 2 FEBRUARY 2010 typed from tape and edited by the Principal Registrar

FILE NO/S:   CIV 1751 of 2009

BETWEEN:   PERMANENT CUSTODIANS LTD

Plaintiff

AND

CATHERINE ANNE THOMPSON
Defendant

Catchwords:

Summary judgment - Turns on its own facts

Legislation:

Nil

Result:

Application granted

Representation:

Counsel:

Plaintiff:     Mr B C Smith

Defendant:     No appearance

Solicitors:

Plaintiff:     Gadens Lawyers

Defendant:     In person

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

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

Morgan v Pallister [2004] WASC 188

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

Westwind Air Charter Pty Ltd v Hawker De Havilland Ltd (1990) 3 WAR 71

1. PRINCIPAL REGISTRAR GETHING:  By chamber summons dated 6 November 2009, the plaintiff, Permanent Custodians Ltd, has sought summary judgment against Catherine Anne Thompson, the defendant.  By an order made on 25 September 2009, the time within which this application could be brought was extended to 6 November 2009.

2. The plaintiff's claim arises in relation to a loan agreement between the plaintiff and the defendant in November 2007, pursuant to which the plaintiff agreed to provide the defendant with a credit facility in the amount of $636,500.

3. The facility was secured by mortgages over land at 8 and 12 Belfast Close in Canning Vale.  The defendant defaulted on the loan agreement.  In November 2008, the plaintiff took possession of the two secured properties and sold them.  The proceeds of sale were not sufficient to clear the deficit in the loan account.  The present action is to recover the deficit in the amount of approximately $290,000.

4. It is well established that the power to order summary judgment should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99. Great care must be exercised to ensure that under the guise of achieving expeditious finality, a party is not improperly deprived of its opportunity for the trial of the case in the appointed manner by the Court: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129 – 130.

5. The burden of persuasion in a summary judgment application was considered by Pullin J (as his Honour then was) in Morgan v Pallister [2004] WASC 188 at [4] in the following terms:

   "The plaintiff carries the burden of persuading the court that the claim is a good one, that there is no defence to it, that leave to defend should not be granted, and that judgment should be given for the plaintiff.  The party showing cause against the application assumes an evidentiary burden but the overall burden of persuasion remains on the applicant.  The power to order summary judgment should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.  It is clear however, that the procedure is not confined to cases which are immediately plain and obvious and the fact that a transaction is intricate does not disentitle the plaintiff to relief in a clear case.  It was never intended that when the facts are in dispute, an action should be disposed of summarily.  If a defendant's affidavit reveals inconsistencies which might in a trial persuade a court not to believe the defendant's evidence, this will not necessarily lead to judgment for the plaintiff.  It is not necessary to cite authority for these propositions."

6. Where a plaintiff has satisfied all the requirements of O 14 to give it prima facie the right to an order in the terms asked, the burden shifts to the defendant to satisfy the Court why judgment should not be given against it:  Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109 at 110; Westwind Air Charter Pty Ltd v Hawker De Havilland Ltd (1990) 3 WAR 71 at 74. The defendant must satisfy the Court "with respect to the claim … that there is an issue or question in dispute which ought to be tried, or that there ought for some other reason to be a trial of that claim": Rules of the Supreme Court 1971, O 14 r 3(1). As noted in the quote above from Pullin J in Morgan v Pallister (supra), this is an evidentiary burden, the overall legal burden of persuasion remaining on the plaintiff as applicant.

7. In support of its application, the plaintiff filed an affidavit of one Jorge Ledesma sworn 4 November 2009.  From Mr Ledesma's affidavit, the following facts are identified:

   (a)that the loan agreement was entered into;

   (b)that the loan agreement was breached in the sense that there was a default;

   (c)that the secured properties were sold, realising a deficit; and

   (d)that there remains an outstanding amount.

8. Rules of the Supreme Court O 14 r 2(1) provides that: "An application for summary judgment is to be supported by an affidavit verifying the facts on which the claim is based." The plaintiff has satisfied me that it has verified the facts on which the claim is based. Mr Ledesma, on behalf of the plaintiff, had further deposed that, in his belief, the defendant has no defence to the action. The plaintiff, thus, has a prima facie right to judgment.

9. The defendant has not filed any affidavit evidence.  Neither has she filed a defence.  In those circumstances, the plaintiff is entitled to summary judgment.

10. In terms of the amount, what I propose to do is to allow the plaintiff to file a short supplementary affidavit confirming the final amount owing as at Monday 8 February 2010, along with an extracted order.  I will extract the order so that the amount is accurate, as at the date of the order, being 8 February 2010.