Pioneer Credit Solutions Pty Ltd v Puglia - [2023] WADC 1

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   PIONEER CREDIT SOLUTIONS PTY LTD -v- PUGLIA [2023] WADC 1
CORAM:   COMMISSIONER COLLINS
HEARD:   4 & 5 APRIL 2022 & WRITTEN SUBMISSIONS FILED 27 MAY 2022
DELIVERED          :   16 JANUARY 2023
FILE NO/S:   CIV 4275 of 2018
BETWEEN:   PIONEER CREDIT SOLUTIONS PTY LTD
Plaintiff
AND
CONCETTA PUGLIA
First Defendant
BASIL PUGLIA
Second Defendant

Catchwords:

Practice and procedure - Rules of the Supreme Court 1971 (WA) O 34 r 2 - Where the defendants do not appear at the trial - Whether the court should exercise its discretion to proceed with the trial in the absence of the defendants - Considerations relevant to the exercise of the court's discretion - Turns on own facts
Contract - Assignment - Whether assignment of debt valid - Turns on own facts
Statutory interest - Section 32 of the Supreme Court Act 1935 (WA) - Whether assignee entitled to pre-judgment interest from the date when the cause of action arose to when the judgment takes effect in circumstances where the indorsement of claim attached to the writ of summons stated a date significantly later than when the cause of action arose - Turns on own facts

Limitation period - Whether plaintiff's claim is time barred - Turns on facts

Legislation:

Corporations Act 2001 (Cth)
Evidence Act 1906 (WA)
National Consumer Credit Protection Act 2009 (Cth)
Property Law Act 1969 (WA)
Rules of the Supreme Court 1971 (WA)
Supreme Court Act 1935 (WA)

Result:

Judgment for the plaintiff against the defendants

Representation:

Counsel:

Plaintiff	:	Mr T M Clavey
First Defendant	:	No appearance
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	Sphere Legal Pty Ltd
First Defendant	:	Not applicable
Second Defendant	:	Not applicable

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

ABB Service Pty Ltd v Hetherington [2001] WASCA 235
Alma Hill Constructions Pty Ltd v Mudat Onal [2007] VSC 86
APT Finance Pty Ltd v Bajada [2008] WASCA 73
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [No 6] [2019] WASC 5
Broadway Pty Ltd v Lewis [2012] WASC 373
Cardno BSD Pty Ltd v Water Corporation [No 2] [2011] WASCA 161
DM Drainage & Constructions Pty Ltd as Trustee for DM Unit Trust trading as DM Civil v Karara Mining Ltd [No 6] [2021] WASC 410
Evans v Braddock [2015] NSWSC 249
Girgis v Poliwka [No 6] [2019] WASC 230
Grincelis v House (2001) 201 CLR 321
Jenkins v Visualeyes Pty Ltd [2005] VSC 218
Kalls Enterprises Pty Ltd (in liquidation) & Ors v Baloglow & Anor (No 3) [2007] NSWCA 298
MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657
Permanent Custodians Ltd v Shannon [No 2] [2018] WASC 295
Price v Spoor [2021] HCA 20
Province Leader of the Oceania Province of the Congregation of the Christian Brothers v Lawrence [2021] WASCA 77
Rayney v Western Australia [No 4] [2022] WASCA 44
Sims v Jooste QC [2013] WASCA 245
Taret Pty Ltd v My Law Firm Pty Ltd [2022] WASC 260
The Nominal Defendant v Cordin [2017] NSWCA 6
Thomas v National Australia Bank Ltd [2000] 2 Qd R 448
Young v Queensland Trustees Ltd [1956] HCA 51; (1956) 99 CLR 560

Table of Contents

A. Overview

B. Background to the trial in April 2022

C. The parties' pleaded cases

Pioneer Credit's claim

The Puglias' defence

Defence

Revised statement of defence

Affidavit of Truth

Effect of the Puglias' absence

D. Pioneer Credit's witnesses

General observations on credibility

Anthony Gordon Ludlow

Benjamin Christopher Fong

James Singh

Maureen Russell

Malini Tanabalan

E. Summary of issues for determination

F. Mr and Mrs Puglias' dealings with Perpetual, Genworth and Pioneer Credit

Overview

Mr Puglia and Mrs Puglia borrow monies from Perpetual in 2005

Genworth provided lenders mortgage insurance to Perpetual

Mr Puglia and Mrs Puglia borrow further monies from Perpetual in 2007

Genworth extends Perpetual's lenders mortgage insurance policy

Mr and Mrs Puglia default on their loan payments in 2011 and 2012

Perpetual sells Mr and Mrs Puglias' Wannanup property in 2012

Perpetual claims the balance of the loan from Genworth and assigns its interests in the loan to Genworth in 2012

Genworth tried to recover the balance of the loan from Mr and Mrs Puglia

Genworth assigned account number GWAU 054571 and the outstanding balance of $93,127.98 to Pioneer Credit in 2017

G. Have Mr and Mrs Puglia repaid the Loan Agreement Debt?

H. Did Perpetual assign the debt to Genworth; and did Genworth assign the debt to Pioneer Credit?

Relevant law

Disposition

I. Limitation Act issues

Pioneer Credit's claim

Disposition

J. Statutory interest under s 32 of the Supreme Court Act

Pioneer Credit's claim

Relevant law

Disposition

K. Conclusion and orders

COMMISSIONER COLLINS:

A. Overview

This action concerns the recovery of a debt, in circumstances where the current creditor, is an assignee two times removed from the original lender of the relevant monies to the borrowers/debtors, being Mr and Mrs Puglia.
In its reamended statement of claim filed 9 March 2022 (SOC), Pioneer Credit Solutions Pty Ltd (Pioneer Credit) pleaded that in late July 2005, Perpetual Trustees Australia Limited (Perpetual) and Mr and Mrs Puglia entered into a written agreement under which Perpetual agreed to lend Mr and Mrs Puglia the sum of $172,000 (Loan Agreement): pars 3 and 3A. Perpetual registered a mortgage with Landgate over land described as Lot 245 Westview Parade, Wannanup, in the State of Western Australia (Wannanup Property) in order to secure the Puglias' obligations under the Loan Agreement. In January 2007, Perpetual and the Puglias agreed to vary the Loan Agreement on account of Perpetual lending a further sum of $102,760 to the Puglias: par 6.
Prior to advancing the abovementioned sums to the Puglias, Perpetual arranged lenders mortgage insurance with Genworth Financial Mortgage Insurance Pty Ltd (Genworth): par 8. The relevant policy included a condition that provided that if Genworth paid a claim in respect of a loss which Perpetual incurred, then Genworth was subrogated to all of Perpetual's rights and interests in respect of the insured loan contract and Perpetual was to assign the relevant insured loan contract to Genworth: par 8.
Mr and Mrs Puglia were required to make regular monthly repayments to Perpetual under the Loan Agreement. The Puglias made the last of those repayments on or about 3 October 2011: par 9. By reason of the Puglias' defaults under the Loan Agreement, Perpetual sold the Wannanup Property and, in doing so, suffered a loss in the amount of $93,127.98 (Loan Agreement Debt): pars 10 and 11.
Perpetual made a claim under its lenders mortgage insurance. Genworth accepted the claim and paid Perpetual the sum of $93,127.98 (being the Loan Agreement Debt). In exchange, Perpetual assigned all of its rights, title and interests and powers in the Loan Agreement to Genworth by deed dated 30 September 2013. Pioneer Credit claims that Genworth notified the Puglias of the assignment: pars 12 - 14.
On 10 April 2017, Genworth agreed to assign certain debts to Pioneer Credit, which included the assignment of the debt under the Loan Agreement: par 15. Pioneer Credit claims that it provided the Puglias with notice of the assignment: par 16 and 19.
On 23 June 2017, Pioneer Credit served a default notice on Mr and Mrs Puglia under s 88 of sch 1 of the National Consumer Credit Protection Act2009 (Cth) (Schedule 1 - National Credit Code). Pioneer Credit claims that the Puglias failed to comply with the notice within 35 days or at all: pars 17 - 18.
Pioneer Credit claims that despite demand, the Puglias have not paid the Loan Agreement Debt, which remains due and owing to Pioneer Credit: par 20.
By a writ of summons dated 12 November 2018, Pioneer Credit commenced an action against Mr and Mrs Puglia. On the indorsement of claim attached to the writ of summons, Pioneer Credit claimed $93,127.98 (being the Loan Agreement Debt) pursuant to an assignment of debt, together with interest at the rate of 6% per annum on that sum from 9 November 2018 pursuant to s 32 of the Supreme Court Act 1935 (WA) (Supreme Court Act).
The Puglias dispute that they owe Pioneer Credit the Loan Agreement Debt. Having said that, the Puglias have both admitted, at one stage or another, that they have not repaid the Loan Agreement Debt. Their defences, as set out below, are largely irrelevant to the matters in issue and are difficult to follow.
On 4 and 5 April 2022, I presided over the trial of this action.
Mr Puglia and Mrs Puglia did not attend the trial. Nor did they rely on counsel to represent them at the trial. Accordingly, the Puglias did not lead any evidence from witnesses or tender documents at the trial. I say more about this in the judgment below.
At the trial, Pioneer Credit relied on a large number of documents in support of its claim as well as the evidence of four witnesses:
(a)Ms Maureen Russell, an Operational Risk Manager who has been employed with Pioneer Credit since 2013;
(b)Mr Benjamin Christopher Fong, a partner in the law firm known as Lavan Legal;
(c)Mr Anthony Gordon Ludlow, a Senior Claims Adjudicator employed by Genworth; and
(d)Mr James Singh, a Legal Practice Director employed by Pioneer Credit's solicitors.
Pioneer Credit's witnesses did not attend the trial but provided their evidence by affidavit.
In addition to this, Pioneer Credit relied on several documents including the following:
(a)Pioneer Credit's written closing submissions dated 27 May 2022 (Pioneer Credit Submissions);
(b)Pioneer Credit's written submissions filed 10 December 2021 (Pioneer Credit's December 2021 Submissions);
(c)Pioneer Credit's chronology filed 20 December 2021; and
(d)exhibits 1.01 to 1.35 inclusive and 2.36 to 2.45 inclusive.
For the reasons that follow, I am satisfied that Pioneer Credit is entitled to judgment. Accordingly, I find in favour of Pioneer Credit and award judgment in the sum of $93,127.98, together with interest under the Supreme Court Act as set out below.

B. Background to the trial in April 2022

By way of brief background, the matter had previously been listed for a trial to commence on 12 October 2021 before Barone DCJ. On that occasion, Pioneer Credit was represented by counsel. Mrs Puglia attended the court and represented herself. Mr Puglia did not attend the court. After hearing from the parties, Barone DCJ vacated the trial dates for various reasons and adjourned the trial such that it was programmed to commence on 20 December 2021 (ts 156 ‑ ts 158).
On 20 December 2021, counsel for Pioneer Credit attended the court as did Mrs Puglia. Mr Puglia did not attend the court. Wallace DCJ heard the matter as Barone DCJ was presiding in a criminal trial. Wallace DCJ noted that Barone DCJ had previously raised with Mrs Puglia whether Mrs Puglia would like to obtain legal advice and representation in the proceeding, but that Mrs Puglia had chosen to represent herself (ts 189). Similarly, Wallace DCJ proceeded on the basis that Mr Puglia had chosen to progress without representation (ts 189). Ultimately, Wallace DCJ adjourned and vacated the trial for a second time (ts 212 - ts 213).
The trial of this action was programmed to be heard over three days, commencing Monday, 4 April 2022.
The District Court wrote to both Mr and Mrs Puglia by way of a letter dated 15 March 2022 informing them that the trial would proceed on 4 April 2022 as programmed (ts 257).
In the lead-up to the trial, Mrs Puglia attended court hearings on 8 and 23 March 2022 where she was informed, amongst other things, that the trial would commence on 4 April 2022 as programmed (ts 273). Mrs Puglia represented herself in those hearings. I observe that this was not uncommon as Mrs Puglia had represented herself in nearly all of the prior hearings in relation to this matter.
Another procedural hearing was held on 21 March 2022. Mrs Puglia did not attend that hearing, but was provided with a copy of the transcript from that hearing (ts 273). The 8, 21 and 23 March 2022 hearings were conducted on the basis that the trial would commence on 4 April 2022 as programmed.
At the hearing on 23 March 2022, in response to a question from the bench, Mrs Puglia indicated that she would give evidence in her defence and that she might call other witnesses (ts 266 - ts 267).
A little over a week later, one day before the trial was scheduled to commence (1 April 2022, 2.18 pm), the court received an email from Mrs Puglia in which she informed the court that she would not be taking part in the trial. I have set out the full email below, retaining the bold font and underlining as per the original:
Dear Julie Wager and Michael Collins
By email only:
Within the universal maxim of law 'notice to agent is notice to principal and notice to principal is notice to agent'. All addressed parties Jointly and Severally as well as their Successors, Nominees and assigns
RE: Your reference CIV 4275/18 - Pioneer Credit Solutions v Puglia & Another
TAKE NOTICE: We will not be partaking in any further proceeding in relation to the above mentioned matter given recent material evidence in our possession which proves, as a matter of fact and beyond a shadow of doubt, that this purported 'court' has no lawful authority, standing or jurisdiction.
We are aware of the fact that any officer, agent or representatives acting for and on behalf of the purported 'court' operating under an alleged lawful and legal corporate entity, the 'DISTRICT COURT OF WESTERN AUSTRALIA', has NO Crown and Constitutional authority under Our Commonwealth of Australia Constitution Act 1901, as Proclaimed and Gazette of which we the people in the Referendum, year 1999 voted to stay within as a Constitutional Monarchy.
Should any officer, agent or representative acting for and on behalf of this purported 'court' believe they have any genuine and valid claims to the contrary, we recommend they raise such matters with another purported 'court', specifically the corporate entity trading as the SUPREME COURT OF VICTORIA 32 790 228 959, given the material evidence of substance in our possession came about through a former proceeding in that corporate entity, which has since come to an end.
Should any officer, agent or representative acting for and on behalf of the purported 'court', as well as any party to the proceeding including their representatives, choose to take further action in relation to this matter beyond this point, we say they would be intentionally violating our rights, committing criminal offences, including fraud, among other things, and may be subject to liabilities in their professional, private and personal capacities
We also wish to draw your attention to the following, previously brought to your attention by our business associate in email correspondence dated 24 March 2022:
Western Australia Interpretation Act 1984
76A. Written laws made before Australia Acts, validity of
(1) Each provision of an Act or subsidiary legislation enacted or made, or purporting to have been enacted or made, before the commencement of the Australia Acts —
(a) has the same effect as it would have had; and
(b) is as valid as it would have been, if the Australia Acts had been in operation at the time of its enactment or making, or purported enactment or making.
(2) Subsection (1) is not intended to, and is not to be given effect so as to —
(a) invalidate any enactment that was valid immediately before the commencement of the Australia Acts; or
(b) invalidate any Act because it was assented to by the Sovereign rather than the Governor
Oxford English Dictionary Definition: Purport verb. Appear to be or do something, especially falsely Ignorance of the law is no defense, nor is 'I was just following orders' or 'I was just doing my job', as history has shown, evidenced by what transpired in the 'Nuremburg Trials' to name just one historical event.
We consider this case dismissed with prejudice and do not wish or expect to receive any further communications, by any means, from any officer, agent or representative acting for and on behalf of this purported 'court'
This open email correspondence is written without ill-will or vexation, in good faith, full honour and with clean hands in equity on this 1^st day of the month of April in the year two thousand and twenty two A.D by:
Connie of the family Puglia - Attorney in fact for CONNIE PUGLIA ens legis and all derivatives thereof.
CPuglia
PRIVACY NOTICE: Warning - any person, institution, Agent or Agency of any governmental structure or any Corporation, including, but not limited to, Australian Securities Intelligence Organization or The Commonwealth of Australia Corporation, United Nations, C.I.A. / F.B.I. C.F.R. or Google using or monitoring this email and/or email address, you must obtain my notarized written consent/permission to utilize any of my information, or any of the content contained herein including, but not limited to my personal information, photos/images. The contents of this email are private and privileged and confidential information and if you are not the intended recipient, you should note that the reading, use, disclosure, copying or distribution of this email is prohibited. If you are not the intended addressee, please notify the sender by return email immediately as the violation of my personal privacy is punishable by law. PRIVACY ACT 1988 - ALL RIGHTS RESERVED WITHOUT PREJUDICE.
No assured value, No liability, Non-Assumpsit.
Errors & Omissions Excepted. All Rights Reserved. Without Recourse.
In her email, Mrs Puglia stated that she was not going to participate in the trial of the matter. One of the reasons she gave was, in effect, that she did not recognise the authority of the District Court of Western Australia to determine the dispute between Pioneer Credit and her and Mr Puglia. This was not the first time that Mrs Puglia had raised that issue. I say more about this in relation to Mrs Puglia's defence.
On the morning of the trial, my associate called Mrs Puglia on the phone number Mrs Puglia usually used when contacting the court. However, my associate was not able to contact Mrs Puglia (ts 272 ‑ ts 273).
Mr Puglia did not attend the trial either. Mr Puglia had previously been informed, both through his wife, and by way of a letter from the District Court dated 30 December 2021, that the scheduled trial of the matter would proceed as programmed (ts 273). Separate to this, Mr Jacob Smith, a paralegal employed by Pioneer Credit's solicitors, deposed in an affidavit dated 23 March 2022 that he had attended the Puglias' residential address on 23 March 2022 and served a copy of the abovementioned letter on Mr Puglia.
At the commencement of the trial on 4 April 2022, Pioneer Credit's counsel submitted that the trial should proceed in the absence of the Puglias. Pioneer Credit's counsel referred the court to O 34 r 2 of the Rules of the Supreme Court 1971 (WA) (RSC). This provides the court with a discretion as to whether the trial should proceed in the absence of a party. Pioneer Credit's counsel submitted that, having regard to Mrs Puglia's email, there was 'no basis on which to adjourn the trial today' (ts 271 - ts 272).
I ruled that the trial should proceed in the absence of the Puglias. Having regard to the discretion contained in O 34 r 2 of the RSC, I was satisfied that there was no reason why the trial should not proceed in their absence. Both Mr and Mrs Puglia had been informed repeatedly that the trial would commence on 4 April 2022, whether they participated in the trial or not (absent a compelling reason, such as ill health). Mrs Puglia had informed the court that she was not going to attend. Similarly, Mr Puglia had been given the opportunity to attend if he desired to do so (ts 271 - ts 273). Having regard to the history of the matter, and the modern approach to case flow management (O 1 r 4B RSC), justice would not have been served if the trial had to be vacated for a third time: see generally Broadway Pty Ltd v Lewis [2012] WASC 373 [43] - [53] (Pritchard J) (Broadway) and the considerations identified therein.

At the commencement of the trial on 4 April 2022, given that the defendants (Mr and Mrs Puglia) chose not to attend, there was discussion between bar and bench as to the procedure that would apply to the balance of the trial. It seemed to me at the time, that there might be savings in time and cost if Pioneer Credit's witnesses gave their evidence by affidavit instead of in person as would normally have been the case. Ultimately that is what happened (ts 274 - ts 275). Following the trial, Pioneer Credit filed five affidavits in support of its claim: Ms Maureen Russell (dated 19 and 27 May 2022), Mr Benjamin Fong (dated 18 May 2022), Mr Anthony Ludlow (dated 24 May 2022) and Mr James Singh (dated 18 May 2022). Pioneer Credit also filed an affidavit by Ms Tanabalan (dated 19 May 2022) (a solicitor on its behalf), in which Ms Tanabalan explained why further time was needed to settle the abovementioned affidavits.
At the same time, it seemed sensible for Pioneer Credit to open its case in the usual way and take the court through the relevant documents. Because the defendants were not present in the court room, Pioneer Credit was, in effect, opening and closing its case at the same time, save for the filing of the affidavit evidence and any written closing submissions. In the end, that is what occurred (ts 276). Pioneer Credit's counsel explained his client's case over one-and-a-half days and during the process, tendered relevant documents in support of that case.
Pioneer Credit supplemented its case with written closing submissions dated 27 May 2022.

C. The parties' pleaded cases

Pioneer Credit's claim

In addition to its claim to recover the Loan Agreement Debt, Pioneer Credit claimed interest pursuant to s 32 of the Supreme Court Act at the rate prescribed by O 36 r 20 of the RSC, from 6 September 2012, being the date when it claimed the Loan Agreement Debt arose, until the date of judgment.

The Puglias' defence

During these proceedings, Mr and Mrs Puglia filed several documents purporting to be defences to the claims made against them. I refer to some of these below.

Defence

By document dated 20 February 2021, but filed 2 March 2021, Mrs Puglia filed a 'defence' (Defence) to the claim made against her.
In her Defence, Mrs Puglia refers to 40 grounds in defence.
Pioneer Credit submitted that many of the grounds were vague and assertive, repetitive, and demonstrated a reluctance to acknowledge the terms of the bargain Mr and Mrs Puglia made with Perpetual. Pioneer Credit also submitted that Mrs Puglia's grounds of defence were misconceived, frivolous and vexatious and generally not founded in fact or law: Pioneer Credit's December 2021 Submissions, pars 58 and 59.
Having reviewed Mrs Puglia's Defence, I tend to agree with Pioneer Credit's submissions. Mrs Puglia's Defence contains much irrelevant and incomprehensible material. Other parts, including the fraud allegations, involve serious allegations without any substance in support of them. I do not propose to traverse all of Mrs Puglia's defences. That would not be consistent with modern case flow management principles or an efficient use of the court's resources.
On one level, Mrs Puglia's Defence is relatively simple. She denies that there is an 'alleged purported debt' and claims that Pioneer Credit has not produced any document that states that the 'debt' exists: Defence, ground two.
I observe that Mrs Puglia's Defence here is inconsistent with her husband's admission, which I refer to below at [49] in respect of his Affidavit of Truth.
It is also inconsistent with the position she took before Barone DCJ during a procedural hearing in October 2021. At that hearing, Mrs Puglia admitted that she had not paid the money back. The relevant exchange was in the following terms (ts 74):
BARONE DCJ:   The money was given to you, wasn’t it?
THE 1ST DEFENDANT:   The money was.
BARONE DCJ:   Did you pay it back?
THE 1ST DEFENDANT:   No. But I paid the insurance though.
On another level, Mrs Puglia's Defence is difficult to understand. Mrs Puglia asserted 40 defences, which Pioneer Credit submitted could be loosely aggregated under several headings, including some of the following:
(a)Jurisdiction: Mrs Puglia challenged the jurisdiction of the District Court of Western Australian to hear and determine the matter on Western Australian and Australian constitutional grounds and claimed that their defence was filed under intimidation, coercion, and by unlawful threats;
(b)Procedural Grounds: Mrs Puglia challenged Pioneer Credit's claim on the basis that Pioneer Credit had failed to comply with a number of procedural aspects including the failure to serve certain documents, the failure to file affidavits, the failure to place a lawyer's signature on relevant documents, et cetera;
(c)Standing: Mrs Puglia asserted that Pioneer Credit had no standing in the present matter and that accordingly, the present proceedings involved an abuse of process;
(d)Fraud & Coercion: Mrs Puglia claimed that Pioneer Credit together with Genworth had fraudulently made a claim on her in the amount of $93,127.98; and
(e)No Debt and Unjust Enrichment: Mrs Puglia asserted that Pioneer Credit was a 'third-party interloper which purchased the alleged debt by its own will to make an unjust financial gain and obtain an unjust enrichment' at their expense.
In my view, the above defences are without merit. If they had any substance, Mrs Puglia could have prosecuted them, either personally by her attendance at the trial or alternatively, through counsel. She chose not to attend the trial.

Revised statement of defence

Mrs Puglia filed a 'revised statement of defence' dated 16 November 2021. This defence was stated to be on behalf of Mr and Mrs Puglia. Again, this document is largely incomprehensible. At best, it appears that Mr and Mrs Puglia challenged the jurisdiction of the District Court to hear and determine the present matter. That position is misconceived.

Affidavit of Truth

By a document filed 19 December 2019, Mr Puglia filed a document titled 'Cover Sheet for Affidavit of Truth Containing my Defence'. Behind the cover sheet was a document titled 'Affidavit of Truth'.
By par 1 of his Affidavit of Truth, Mr Puglia referred to a medical certificate that he said outlined his medical condition. Attached to his affidavit was a medical certificate from Ocean Reef Medical Centre. The certificate was signed by Dr Wei Jek Keng and dated 6 December 2019. Dr Keng stated that Mr Puglia had:
a significant chronic cardiac medical condition which may be exacerbated and made worse by stress and I would appreciate your considering his exemption from jury duty as it is likely to make his condition worse.
On its face, the certificate is capable of providing a possible explanation as to why Mr Puglia chose not to attend the trial. However, I observe that Mr Puglia did not seek to rely on a medical certificate at the time of the trial, nor did he tender this document in support of his absence. Further, the certificate is dated about two and a half years prior to the trial. The certificate appears to have been procured on the basis that Mr Puglia wanted an exemption from jury duty. It is not clear how 'jury duty' was relevant to the trial of this matter.
By par 5 of his Affidavit of Truth, Mr Puglia responded to a letter from Genworth dated 1 November 2013. I refer to this letter below at [135]. In his affidavit, Mr Puglia admits the first paragraph of that letter. That paragraph was in the following terms:
On or about 26 August 2005 you obtained a mortgage through Macquarie Securitisation for a property at Lot 245 Westview Pde Wannanup WA 6210. Following your default on the mortgage, the property was sold leaving a shortfall against your outstanding mortgage loan balance of $93,127.98.
In effect, Mr Puglia accepted that he obtained a mortgage through Macquarie in relation to the Wannanup Property and following his default on the mortgage, the Wannanup Property was sold leaving a shortfall of $93,127.98. Put another way, Mr Puglia accepted that he owed his creditors $93,127.98.
The second paragraph of Genworth's letter was in the following terms:
This mortgage was insured by Genworth Financial Mortgage Insurance Pty Ltd (Genworth). Genworth has reimbursed Macquarie Securitisation for the above loss under the contract of insurance. Macquarie Securitisation has now assigned all lender rights under the covenants in the credit contract for the insured mortgage to Genworth. Under those covenants, you remain liable for the shortfall of $93,127.98 arising from the sale of the property.
In response, Mr Puglia stated as follows in his Affidavit of Truth:
Paragraph 2 states that Genworth Financial Mortgage Insurance Pty Ltd has reimbursed Macquarie Securitisation for the alleged loss under the contract of insurance (which was paid for by us not Genworth). When Genworth paid the shortfall there was no debt credit contract in existence from that moment on to be assigned. The court has been advised by the Plaintiff that they purchased the 'debt' and then decided that the 'debt' has now been assigned to them. How when it is finished?
The above paragraph seems to suggest that Mr Puglia thought that if Genworth paid the shortfall to Perpetual, the debt he owed Perpetual had been extinguished. That position is inconsistent with the Puglias' Loan Agreement, in particular, general condition 1.1(d), to which I refer to at [89] below. That condition made plain that Perpetual took out lenders mortgage insurance to protect itself from possible defaults by the Puglias under the Loan Agreement. The policy expressly stated that it did not protect Mr and Mrs Puglia.
Ultimately, Mr Puglia chose not to participate in the trial or press any defence he may have.

Effect of the Puglias' absence

In Broadway, Pritchard J stated at [55] that notwithstanding the absence of a defendant, a plaintiff must still prove his or her claim so far as the burden of proof rests upon him or her. The Puglias' absence meant that the court did not have before it any evidence that they could have adduced to contradict or test the material facts on which Pioneer Credit relied in support of its claims. Further, neither Mr Puglia nor Mrs Puglia filed any submissions to advance their respective positions in opposition to those made on behalf of Pioneer Credit.

D. Pioneer Credit's witnesses

General observations on credibility

I accept that Pioneer Credit's witnesses gave their evidence truthfully and were honest. Much of their evidence was uncontroversial and supported by documents. Although much of the evidence concerned matters that occurred 10 years ago or more, it was generally documented at the relevant time. Mr Ludlow's and Ms Russell's explanations in particular, were fulsome and helpful to the court. Mr and Mrs Puglias' failure to attend the trial meant that the evidence of Pioneer Credit's witnesses was not challenged. In the circumstances, I have generally accepted the evidence of Pioneer Credit's witnesses.
A number of senior judges in this state have set out the general approach that should be adopted when assessing written and oral testimony. Set out below is an example involving Vaughan J from DM Drainage & Constructions Pty Ltd as Trustee for DM Unit Trust trading as DM Civil v Karara Mining Ltd [No 6] [2021] WASC 410 [56] - [57]:
56 First, the principle that it is necessary to assess the written and oral testimony in the context of the contemporary materials, objectively established facts and the apparent logic of events applies with its usual force.
57 Second, subject to what is said below as to the documentary evidence, I consider it is generally preferable to rely on the contemporaneous documents rather than the recollections of the lay witnesses. Contemporaneous statements - in the form of email communications and other records of contemporaneous communications - in light of the contemporaneous documentary record more generally, are likely to be a more accurate reflection of the underlying events than the later witness statements prepared for the purpose of the litigation at a time when false memories can intrude.
(citations omitted)
Vaughan J made similar statements in Girgis v Poliwka [No 6] [2019] WASC 230, as did Tottle J in Belgravia Nominees Pty Ltd v Lowe Pty Ltd [No 6] [2019] WASC 5 [26], particularly [26(f)], [26(g)].
In New South Wales, Davies J in the Court of Appeal in The Nominal Defendant v Cordin [2017] NSWCA 6 [165] - [167] provided a comprehensive analysis of the value of contemporaneous records in assisting the court to make factual findings. In that case at [165], Davies J referred with evident approval to the observations of Hallen J at [74] in Evans v Braddock [2015] NSWSC 249 where he said:
A court, in cases involving events which occurred long before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200, per Jagot J, at [1247]. Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd (No 4) [2010] WASC 160, per Kenneth Martin J, at [157].

Anthony Gordon Ludlow

Mr Ludlow is a Senior Claims Adjudicator employed by Genworth and, at the date of his affidavit, had been employed by Genworth for nine years. In his evidence, Mr Ludlow explained that he was Genworth's authorised representative for the purposes of these proceedings and that the documents that he referred to in his affidavit were sourced from Genworth's business records and databases: Ludlow Affidavit, pars 1, 3 and 4.
Mr Ludlow's principal role involved determining whether to accept lender claims under Genworth's lenders mortgage insurance policy (otherwise referred to as 'LMI policy'). In this respect, if he determined that a lender's claim fell within the terms of the LMI policy, he would then arrange for payment of the lender's claim to the lender. Another of his duties was to ensure that the lender (Genworth's insured) had assigned its mortgagee rights to Genworth so that Genworth could undertake recovery action against the defaulting borrower, should it choose to do so. Mr Ludlow explained that Genworth's insurance was for the protection of the mortgagee/lender, not the borrower: Ludlow Affidavit, pars 6, 8, 10, 11, 12 and 14.
Mr Ludlow also gave evidence about the records Genworth kept and its approach to record keeping generally. This included using database software called 'Guidewire' from about 2007, which Genworth employees used to store data about LMI policies issued, claims made by the lenders, outstanding arrears on the account, hardship applications, mortgaged property sales and details about the recovery process undertaken by Genworth's employees' recoveries team: Ludlow Affidavit, par 15.
Mr Ludlow also explained that Guidewire was the repository for information which Genworth employees collected regarding incoming and outgoing correspondences and telephone calls and activities on claim recovery files: Ludlow Affidavit, par 18. Genworth's internal practice standards required its employees to enter information about telephone calls and claims activities contemporaneously with the relevant telephone call or activity, or as soon as possible after that activity. All Genworth employees received training and instruction about these standards: Ludlow Affidavit, pars 20 and 21.
In addition to the above, Genworth's recoveries team also used Guidewire to update the 'case notes tab' when they had telephone calls relating to a recovery or actioned a recoveries file: Ludlow Affidavit, par 22.
Mr Ludlow explained that Genworth no longer used Guidewire and that all data stored on Guidewire was migrated to a new database called Appian. Mr Ludlow said that he still had access to the Guidewire data and had confirmed that the documents referred to in his statement were true copies of the digital documents inspected in Appian: Ludlow Affidavit, pars 27 and 28.

Benjamin Christopher Fong

Mr Fong is a partner at the law firm known as Lavan Legal and specialises in banking and finance matters. In his affidavit, he stated that he had been employed by Lavan Legal for the last 10 years.
Mr Fong explained that in 2012 he was working for Lavan Legal as a Special Counsel and had dealings with Macquarie generally and in particular, in relation to the sale of Mr and Mrs Puglias' Wannanup Property in September 2012. Mr Fong explained that Macquarie was a client of Lavan Legal at the time and was a mortgage manager which managed loan agreements and mortgagee rights for Perpetual.
Mr Fong gave some evidence about Lavan Legal's documents and business records and the firm's record keeping requirements and records.

James Singh

Mr Singh is a legal practice director employed by Pioneer Credit's solicitors. Mr Singh explained that he filed his current affidavit to correct a typographical error in an earlier affidavit dated 1 November 2021 and also to explain the service of Pioneer Credit's 'court book' on Mr and Mrs Puglia, which he performed at their suburban residential address in Ocean Reef, Western Australia.

Maureen Russell

At the date of her affidavit (19 May 2022), Ms Russell was Pioneer Credit's operational risk manager and had been employed by Pioneer Credit since 2013. Ms Russell stated, broadly, that Pioneer Credit operates a business that purchases the legal rights and interests in loan contracts and debts owed by borrowers/debtors to financial institutions and after acquiring those rights, takes steps to recover monies owed by the borrowers/debtors. Ms Russell referred to those transactions as 'debt acquisition transactions'. If a debtor refused to enter into a payment arrangement or defaulted under a payment arrangement with Pioneer Credit, then Pioneer Credit personnel could take steps against the debtor, which might include legal proceedings, to recover the debt owed: Russell Affidavit, pars 1, 3, 5, 6 and 9.
Ms Russell explained that part of her role involved supervising a team that received, managed, processed, and resolved disputes with people from whom Pioneer Credit claimed the repayment of debts and also to ensure that Pioneer Credit complied with relevant industry guidelines and statutory obligations. In order to fulfil her functions, Ms Russell had full access to Pioneer Credit's business records, including all documents kept or prepared for the use in Pioneer Credit's normal business such as loan applications, loan agreements, loan statements, file notes and correspondence by Pioneer Credit employees: Russell Affidavit, par 10 - 13.
In her evidence, Ms Russell explained the departmental structures within Pioneer Credit's organisation and the systems Pioneer Credit used to retain its business information and business documents in digital format. This included the use of 'Wincollect', which Pioneer Credit employees used for the purposes of credit and receivables management and to record activities in relation to recovery actions taken to recover debts and their interactions with debtors. Ms Russell stated that Wincollect was used as a record-keeping system which records and stores data, file notes, collections activities and documents specific to each debt for the purpose of continuing recording of information relating to Pioneer Credit's business operations: Russell Affidavit, pars 14 - 19.

Ms Russell stated that Pioneer Credit's default settings in Wincollect provided that once an account had been uploaded into Wincollect, an automated notice of assignment was generated and sent to the debtor or debtors: Russell Affidavit, par 40. Ms Russell also provided evidence about Pioneer Credit's usual practices in relation to how Pioneer Credit managed its debtors during the debt recovery phase. This included evidence about Pioneer Credit's standard practices in relation to the issuing of various notices including notices under the Schedule 1 - National Credit Code, such as under s 88: Russell Affidavit, pars 41 ‑ 47.
As to Mr and Mrs Puglia, Ms Russell gave evidence to the effect that she had accessed and reviewed Pioneer Credit's business records, including those maintained on Wincollect, relevant to the Puglias. In her evidence, she identified relevant documents, which are exhibits in this matter, and deposed to the fact that they were a true production of the digital copy maintained within Pioneer Credit's business records. It is not necessary for my decision to identify every Russell exhibit in these reasons. Her evidence also included various screenshots of Wincollect and the file notes: Russell Affidavit, pars 49, 53 - 105.
In her second affidavit dated 27 May 2022, Ms Russell gave evidence to the effect that she logged into Wincollect on 27 May 2022 and could see that Pioneer Credit had not received any payment from the Puglias. Put another way, the Puglias had not repaid the Loan Agreement Debt. Ms Russell annexed a computer 'screen shot' copy of Wincollect in support of her evidence.

Malini Tanabalan

Ms Tanabalan was, at the time of the execution of her affidavit, an employee of Pioneer Credit's solicitors. In her affidavit of 19 May 2022, she deposed that she was an Associate who had the day‑to‑day carriage of the matter on behalf of Pioneer Credit.
Ms Tanabalan gave evidence to explain the delay in the filing of the affidavit evidence of Mr Fong, Mr Ludlow, Mr Singh, and Ms Russell. The delay was relatively short, involving a little over a week. Broadly summarised, the reasons for the delay included: additional time for Pioneer Credit's counsel to settle the affidavits; delays in obtaining unredacted versions of relevant documents; delays associated with COVID-19 issues; and delays associated with gaining access to the relevant witnesses. The most recent delay occurred against the background of an earlier delay (involving about two weeks). In relation to that earlier delay, Pioneer Credit was granted further time to finalise its affidavit evidence on the basis that if a further request was made for additional time, then that request would need to be supported by an affidavit. This is what occurred.
There was no evidence of prejudice to the defendants by the late provision of the affidavit evidence.
In the circumstances, I accept Ms Tanabalan's explanation for the delay in filing Pioneer Credit's evidence, with the result that Pioneer Credit can rely on the affidavit evidence in support of its case in this proceeding.

E. Summary of issues for determination

Broadly stated, the issues are:
(a)have Mr and Mrs Puglia repaid the Loan Agreement Debt to Perpetual, Genworth and/or Pioneer Credit;
(b)if not, was the Loan Agreement Debt validly assigned to Pioneer Credit; and
(c)is Pioneer Credit entitled to statutory interest under s 32 of the Supreme Court Act from 6 September 2012 or from some other time?

F. Mr and Mrs Puglias' dealings with Perpetual, Genworth and Pioneer Credit

Overview

Set out below are my findings of fact on the background and essential issues. Most of the facts are uncontroversial and supported by, or based upon, contemporaneous documents. I have generally indicated the source of each finding of fact.
As set out above, Pioneer Credit relied on exhibits 1.01 to 1.35 inclusive and 2.36 to 2.45 inclusive in support of its case. Pioneer Credit tendered those documents on the basis that they were either within the personal knowledge of the relevant witness, were reproductions of public documents (s 73B under the Evidence Act 1906 (WA)), were business records (s 79C2(a) under the Evidence Act) or were receivable as extracts from an ASIC database under s 1274B of the Corporations Act 2001 (Cth). Pioneer Credit provided the court with a helpful table, which listed the documents together with the relevant witnesses verifying the documents and otherwise the basis for their admissibility (dated 27 May 2022). I have accepted the documents on that basis.

Mr Puglia and Mrs Puglia borrow monies from Perpetual in 2005

In July 2005, Mr and Mrs Puglia applied to Macquarie Mortgages Pty Ltd (Macquarie) for a loan in the amount of $172,000: exhibit 1.03. In the application, Macquarie is described as the 'Manager': Macquarie was not the lender. By signing the application, Mr and Mrs Puglia agreed that Macquarie could exchange information between credit providers in order to assist with the raising of finance: ts 290; exhibit 1.03, page 12. The Puglias accepted that Macquarie could be paid and retain fees, margins and commissions in respect of the credit arranged by it in consideration of its role as mortgage originator and mortgage manager: exhibit 1.03, page 12.
Macquarie's role was, in effect, to find a credit provider which would lend money to the Puglias (ts 291 - ts 292). The application records that the Puglias signed it on 14 July 2005: exhibit 1.03, page 14. The Puglias proposed that the Wannanup Property be security for the loan: exhibit 1.03, page 8.
The application included information about Mr and Mrs Puglia, including their occupations and a statement of their assets and liabilities. Both Mr and Mrs Puglia described themselves as company directors with an annual income of $150,000 each: ts 293; exhibit 1.03, page 7. At the top of the statement of assets and liabilities was a heading 'All Finance Services Pty Ltd'. Under the heading 'Assets' were listed six properties and their values. From the descriptions of the two subheadings, being 'House Property' and 'Other Property', it seemed that the Puglias had listed one home address and five investment properties as part of their assets. Three of the properties were listed under the heading 'Liabilities' with values attributed to them as well: exhibit 1.03, page 9. The statement of assets and liabilities also identified several lenders, including Macquarie.
Pioneer Credit submitted that based on the above information, the court should find that Mr and Mrs Puglia were experienced property owners who had had prior dealings with multiple finance companies, including Macquarie: ts 289 - 290; Pioneer Credit Submissions, par 37. In the absence of Mr and Mrs Puglia, I accept that Pioneer Credit's submission has merit. It is a reasonable inference that is available from the application and the context in which the Puglias made the application for finance and completed the statement of assets and liabilities. I make that finding accordingly.
In late July 2005, Perpetual offered to lend the Puglias the sum of $172,000: exhibit 1.04, page 17. Perpetual's offer included a schedule and general conditions that applied to the loan. Under the heading 'General Information' on page 7 of the offer, the following information was recorded:
(a)Perpetual was the credit provider making the offer;
(b)Mr and Mrs Puglia were listed as the borrowers;
(c)the loan type was a Macquarie First Express Home Loan; and
(d)Macquarie was listed as the mortgage manager. The document expressly identified that Perpetual had appointed Macquarie as mortgage manager to manage the Puglias' loan contract and the securities and to exercise all the powers, rights and functions of Perpetual under their loan contract and the securities on its behalf: exhibit 1.04, page 23. Pioneer Credit's counsel described the relationship this way: in effect, Perpetual provided the money and Macquarie did everything else (ts 296).
Under the heading 'Security' on page 8 of the offer, the Puglias agreed that Perpetual could take a first mortgage over the Wannanup Property.
Page 8 of the offer also identified the general conditions that would govern the loan. The general conditions were said to be in a booklet bearing the document reference number MM/GC/01/05.
General condition 1.1(d) was relevantly in the following terms:
1.1 Perpetual was not obliged to advance the loan unless:
(d)Perpetual has 100% lenders mortgage insurance in respect of the loan;
You [Mr and Mrs Puglia] acknowledge that this insurance protects Perpetual and not you. If you are in default under your loan contract, resulting in a need to sell the mortgaged property, and the sale proceeds are insufficient to fully repay the amount outstanding under your loan contract, Perpetual may incur a loss. Perpetual may recover this loss under the lenders mortgage insurance policy. However, because you are not protected by the lenders mortgage insurance, you become legally responsible to repay the insurer the amount outstanding under your loan contract;
The general conditions also included the following relevant conditions:
(a)Mr and Mrs Puglia owed and agreed to pay Perpetual the amounts payable under their loan contract in accordance with the loan contract: general condition 15;
(b)Mr and Mrs Puglia would be in default under their loan contract if they did not pay the amount payable under their loan contract by its due date for payment: general condition 22.2;
(c)if Mr and Mrs Puglia were in default under their loan contract, Perpetual may, after giving any notice required by law and waiting the required period, exercise any and all of its rights under the loan contract and any security: general condition 23.3(b);
(d)the loan contract bound each of Mr and Mrs Puglia jointly and severally: general condition 29.1; and
(e)Perpetual was permitted to assign or transfer to any person, and could deal in any manner with any rights, obligations or interests under the loan contract or the security (or both): general condition 29.2.
Provision was made for the Puglias to accept Perpetual's offer by signing the offer document, which they did. Their signatures were witnessed: exhibit 1.04, page 26 and 27. By accepting the offer, Mr and Mrs Puglia acknowledged, among other matters, that they had received, read and understood the terms and conditions set out in the schedule and the general conditions. They also acknowledged that both Perpetual and Macquarie had strongly recommended that they obtain independent legal and financial advice in relation to the loan and that they had had an opportunity to seek that advice. In substance, Mr and Mrs Puglia agreed to borrow $172,000 from Perpetual in accordance with Perpetual's terms and conditions as recorded in their agreement.
On about 22 August 2005:
(a)Mr and Mrs Puglia executed a mortgage over the Wannanup Property, in favour of Perpetual: exhibit 1.06, pages 65 to 68;

(b)$172,000 was paid to Mr Puglia's Macquarie account (Macquarie First Express Standard Variable Rate Account Number: 54112608 - which Pioneer Credit's counsel submitted was the loan account number (ts 313)): exhibit 1.07; and
(c)the mortgage was assessed for stamp duty, with a certificate of stamp duty issued the same day: exhibit 1.06, page 64.

By executing the mortgage, the Puglias agreed that the provisions of the memorandum of provisions (G285621) were incorporated into the mortgage. The memorandum of provisions was also registered with Landgate: exhibits 1.06 and 2.36. The memorandum of provisions recorded, amongst other things, Perpetual's rights and entitlements as mortgagee, including its powers of sale as mortgagee.
Pioneer Credit submitted that the number allocated to the mortgage for registration purposes was J405364, which corresponds with the registered number recorded in the Landgate title history annexed to Mr Singh's affidavit at JSI-4: exhibit 1.06, page 68; Singh Affidavit, pars 14 - 16; Pioneer Credit Submissions, par 58. I accept this.
Mr and Mrs Puglia signed mortgagor certificates by which they confirmed their understanding that:
(a)they had to repay Perpetual all money advanced to them, together with interest;
(b)if they did not pay the money they owed to Perpetual, on time, Perpetual could demand payment of all money owed to it;
(c)if they did not comply with Perpetual's demand, then Perpetual could sell the Wannanup Property; and
(d)if after the sale of the Wannanup Property, money was still owing to Perpetual, they would be liable to pay the outstanding amount to Perpetual: exhibits 1.08 and 1.09.
The mortgagor certificates were witnessed, but not dated.
In its written submissions, Pioneer Credit submitted that on or about 23 August 2005, Perpetual registered its mortgage with Landgate: Pioneer Credit Submissions, par 34. Pioneer Credit relied on the evidence of Mr Singh for that submission, and in particular, a Landgate search annexed to Mr Singh's affidavit: par 16 and JSI-4. I accept that the Landgate search is consistent with Pioneer Credit's submission. In addition, the mortgage had the date 23 August 2005 handwritten on it: exhibit 1.06, page 68.
The Landgate search did not form one of the documents tendered by Pioneer Credit during the trial. However, Pioneer Credit's counsel informed the court that such a document would be provided and tendered as part of its evidence. I agreed to that approach (ts 372 ‑ ts 373). Pioneer Credit referred to other evidence in support of its submission, which I accept. Among other documents, mortgage number J405364 was recorded on the transfer of land by mortgagee (power of sale) by which Perpetual transferred its interest in the Wannanup Property to the new purchasers in 2012: exhibit 1.02. See also exhibits 1.06, 1.08 and 1.09.

Genworth provided lenders mortgage insurance to Perpetual

Genworth provided lenders mortgage insurance to Perpetual in respect of the Wannanup Property. This was recorded in a document titled 'Lenders Mortgage Insurance - Certificate of Insurance', with the approval date of 27 July 2005. The insured amount was the value of the loan, which was recorded as $172,000. Mr and Mrs Puglia were identified as the borrowers: exhibit 1.05. Mr Ludlow referred to the certificate in his affidavit and confirmed that the certificate recorded that Genworth provided Perpetual with lenders mortgage insurance in respect of the Wannanup Property as above: Ludlow Affidavit, pars 38 ‑ 40.
The certificate also recorded that Genworth accepted the above risk subject to the 'usual terms and conditions' as contained in its 'Master Policy'.
The Genworth Master Policy included condition 7.8 titled 'Terms and condition of payment of a claim'. Among other matters, it provided that upon payment of a claim, Genworth (as insurer) was subrogated to all the rights and interests of Perpetual (the insured) in respect of Perpetual's loan contract, or any collateral security and Perpetual agreed to assign its loan contract and collateral security to Genworth. In effect, upon payment of a claim, Genworth was subrogated to all of Perpetual's rights and interests under the Loan Agreement and the mortgage over the Wannanup Property and Perpetual agreed to assign the Loan Agreement and the mortgage over the Wannanup Property to Genworth.
In this regard:
(a)the 'Insured Loan Contract' was defined to mean the 'contract under which the Insured Loan [was] made and the Mortgage securing the Insured Loan';
(b)the 'Insured Loan' referred to the $172,000 contained in the certificate of insurance (plus any agreed advances). In effect, the insured loan contract included the Loan Agreement and the mortgage of the Wannanup Property; and
(c)the 'Collateral Security' was defined to include 'any mortgage … relied upon by Perpetual as supporting the obligations under the Insured Loan Contract'.
Mr Ludlow referred to the Master Policy in his affidavit. There he identified the relevant document under which Genworth provided lenders mortgage insurance protection to Perpetual. Mr Ludlow stated that the details specific to a particular contract of insurance within the cover of the Master Policy were recorded in certificates Genworth issued to Perpetual. He also stated that the policy applied to the present legal proceedings and was one of the documents which Genworth considered when deciding whether to accept a claim: exhibit 2.43; Ludlow Affidavit, pars 29 - 35.
The Genworth Master Policy was issued by GE Mortgage Insurance Company Pty Ltd, commencing 4 April 2003. Mr Ludlow stated that Genworth was formerly known as GE Mortgage Insurance Company Pty Ltd: Ludlow Affidavit, par 30. Exhibit 2.45, being an extract from ASIC's database for Genworth, records the above information, and indicates that the change occurred on or about 10 November 2003: Singh Affidavit, pars 17 - 18 and JSI-5.

Mr Puglia and Mrs Puglia borrow further monies from Perpetual in 2007

By letter dated 8 January 2007, Macquarie wrote to Mr Puglia approving an increase in the Puglias' loan (loan account number 54112608). Macquarie's letter stated that the sum of $102,762 had been approved, with the total credit approved now equalling $272,067.04. Macquarie's approval of the increase in credit was subject to completion of various documents: exhibit 1.11, pages 77 and 79.
Macquarie also wrote to the Puglias by letter dated 8 January 2007 in relation to their loan stating that Perpetual had agreed to 'your request to alter your loan from a principal and interest product to an interest only product': exhibit 1.12.
Macquarie wrote to the Puglias by a third letter dated 8 January 2007 in relation to their request to change their loan product to a Macquarie Saver Express loan. The letter stated that they would need to sign a product variation notice if they wished to proceed with the change: exhibit 1.13.
By document dated 18 January 2007, the Puglias accepted in writing Macquarie's offer to increase the amount of credit available to them under their loan: exhibit 1.11, page 80. At the same time, in writing, the Puglias:
(a)authorised Macquarie, as the Manager of their loan (account numbered 54112608), to pay the borrowed funds into a nominated bank account: exhibit 1.11, pages 82 and 83;
(b)agreed to alterations to their loan (account numbered 54112608): exhibit 1.12, page 86; and
(c)agreed to changes to their loan (account numbered 54112608) as described in the Variation Notice dated 8 January 2007: exhibit 1.14, page 92.
The Variation Notice:
(a)informed Mr and Mrs Puglia that Perpetual had agreed to their request to vary their loan;
(b)attached a revised set of general conditions bearing the reference number MM/GC/01/06 that applied to their loan; and
(c)informed Mr and Mrs Puglia that other than the changes specified in the Variation Notice, their loan remained unchanged.
The general conditions bearing the reference number MM/GC/01/06 contain conditions materially in the same terms as set out above at [89] ‑ [90].
On 25 January 2007, the amount of $102,762 was deposited into Mr and Mrs Puglias' Macquarie Saver Express Standard Variable Rate Account Number: 54112608. This was recorded in a Macquarie bank statement for the period 1 January to 30 June 2007: exhibit 1.15. The narration next to the advanced sum stated, 'Principal Increase Advance'. The bank statement also recorded that Perpetual was the mortgagee and that Macquarie was the mortgage manager: exhibit 1.15, page 129.
In the above circumstances, I find that on about 18 January 2007, Mr and Mrs Puglia and Perpetual agreed to vary their loan (account numbered 54112608) by increasing the sum borrowed by $102,762 to a total of $272,067.04.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LP
Acting Associate to Commissioner Collins
16 JANUARY 2023