Prime Capital Securities Pty Ltd v Hirsch - [2025] WASC 267

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   PRIME CAPITAL SECURITIES PTY LTD -v- HIRSCH [2025] WASC 267
CORAM:   MCGRATH J
HEARD:   16 OCTOBER 2024
DELIVERED          :   4 JULY 2025
FILE NO/S: CIV 1397 of 2024
BETWEEN:   PRIME CAPITAL SECURITIES PTY LTD
Plaintiff
AND
RICKY DEAN HIRSCH
Defendant

FILE NO/S: CIV 1398 of 2024
BETWEEN: PRIME CAPITAL SECURITIES PTY LTD
Plaintiff
AND
RICKY DEAN HIRSCH
Defendant

Catchwords:

Practice and procedure - Summary judgment - Mortgage action - Application for possession of property - Application for summary judgment - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA) O 14 r 1

Result:

CIV 1397 of 2024
Application for summary judgment granted

CIV 1398 of 2024
Application for summary judgment granted

Category: B

Representation:

CIV 1397 of 2024

Counsel:

Plaintiff	:	Mr C Breheny
Defendant	:	In person

Solicitors:

Plaintiff	:	Kennedy Vinciullo
Defendant	:	In person

CIV 1398 of 2024

Counsel:

Plaintiff	:	Mr C Breheny
Defendant	:	In person

Solicitors:

Plaintiff	:	Kennedy Vinciullo
Defendant	:	In person

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

Bank of Western Australia v Marsh [2000] WASC 208
Boon v Burt [2020] WASC 64 (S)
Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18
Deputy Commissioner of Taxation v Lafferty [2017] WASC 257
Gamba Holdings UK Limited v Minories Finance Limited [1993] Ch 171
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109
Perpetual Trustee v Nikoloff [2020] WASC 389
Rumball v Mortimore [2000] WASC 126
Secure Funding Pty Ltd v Stark; Secure Funding Pty Ltd v Conway [2013] NSWSC 1536
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
Wallingford v Mutual Society (1880) 5 App Cas 685
Westpac Banking Corporation v Anderson [2017] WASC 106

MCGRATH J:

Introduction

By chamber summons dated 12 July 2024, the plaintiff, Prime Capital Securities Pty Ltd (Prime Capital) applies for summary judgment against the defendant, Mr Hirsch, on the plaintiff's claim for possession of land at 42 West Coast Drive, Marmion (42 West Coast Drive)[1] pursuant to O 14 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC) (CIV 1397 of 2024). The plaintiff has also commenced separate proceedings in which the plaintiff also applies for summary judgment against the defendant claiming possession of the land at 42A West Coast Drive, Marmion (42A West Coast Drive),[2] pursuant to O 14 r 1 of the RSC (CIV 1398 of 2024).
[1] CIV 1397 of 2024.
[2] CIV 1398 of 2024.
Both proceedings arise from the same factual circumstances. The proceedings concern the plaintiff's claim that the defendant has failed to pay to the plaintiff amounts demanded and payable under two Loan, Security and Guarantee Deeds both dated 29 July 2021 (Loan Agreements) secured by a mortgage over 42 West Coast Drive and 42A West Coast Drive, granted by the defendant in favour of the…

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.

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Details

Case: [2025] WASC 267
Decision Date: 4 JULY 2025

CaseChat Overview and Summary

Prime Capital Securities Pty Ltd (the plaintiff) filed an application for summary judgment against Hirsch (the defendant) in relation to an application for possession of property. The application was heard by the Supreme Court of Western Australia. The plaintiff sought vacant possession of the property under the terms of the mortgage, as well as damages and interest for the defendant’s failure to pay the amount owing under the mortgage. The legal issues before the court included whether the plaintiff had made out a prima facie case, and if the defendant had provided a defence that could potentially defeat the plaintiff's claims.

The court considered whether the plaintiff had discharged the legal burden of persuasion by demonstrating that the defendant had defaulted under the mortgage, and that there was no defence to the claim. The plaintiff’s affidavits provided sufficient evidence to establish a prima facie case, as they detailed the defendant's default and the lack of a defence. The defendant, on the other hand, had to provide cogent particularisation of any defence or reason why the case should proceed to a trial. However, the defence provided by the defendant was considered insufficient to establish an arguable defence or other reason for a trial. The court concluded that the plaintiff had met its burden of persuasion and that there was no real prospect of the defendant succeeding in its defence.

The court granted the plaintiff's application for summary judgment, ordering the defendant to give vacant possession of the property and pay the plaintiff’s costs of the application. The court held that the plaintiff had successfully demonstrated that its claims were well-founded, and that the defendant had failed to provide any meaningful defence or reason for a trial. The judgment underscored the importance of the plaintiff meeting its burden of persuasion in establishing a prima facie case, and the need for a defendant to provide cogent particularisation of any defence or reason for a trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The plaintiff bears the legal burden of persuading the court that its claim is a good one and that there is no defence to it. If the plaintiff's affidavit or affidavits in support of the application make out a prima facie case on these two matters, the evidentiary burden passes to the defendant to show there is an arguable defence or some other reason there ought to be a trial of the action.[4] A defendant seeking to demonstrate an arguable defence or some other reason why there ought to be a trial must provide cogent particularisation of their defence.[5] [4] Westpac Banking Corporation v Anderson [2017] WASC 106[53] - [54], [103]. See also Deputy Commissioner of Taxation v Lafferty [2017] WASC 257 [54] (Tottle J) and the authorities referred to.[5]Deputy Commissioner of Taxation v Lafferty [54] citing Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109, 113 (Brinsden J); Wallingford v Mutual Society (1880) 5 App Cas 685, 704 (Lord Blackburn). However, the overall legal burden of persuasion for the granting of summary judgment remains with the applicant. So, in this case, it remains with the plaintiff. In this respect, the fact that a defendant does not positively establish a defence does not mean that there may not be a question in dispute which ought to be tried.[6][6] Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18 [20] - [34]. The relevant history of the proceedings is as follows. On 2 May 2024, the defendant entered an appearance. He is not legally represented and does not propose to instruct a legal practitioner.[7][7] ts 2 (16/10/2024). Pursuant to O 14 r (1), an application for summary judgment needed to be brought within 21 days after the appearance or at any later time by leave of the Court. On 10 June 2024, Registrar Hosking granted leave to bring the application for summary judgment.[8][8] Order 2, Case Management Directions by Registrar Hosking made on 10 June 2024. On 12 July 2024, the plaintiff filed the applications for summary judgment that the defendant give vacant possession of the land pursuant to O 14 r 1(1). The principal affidavits relied upon by the plaintiff in both proceedings are the two affidavits of Mr Steve Sampson, Chief Executive Officer of the Plaintiff, both sworn 12 July 2024[9] (Sampson affidavit CIV 1397 and Sampson affidavit CIV 1398, respectively). The affidavits of Mr Sampson verify the facts upon which each claim is based and state that in the deponent's belief, there is no defence to the claim. [9] Affidavit of Mr Sampson sworn 12 July 2024 (Sampson affidavit CIV 1397); Affidavit of Mr Sampson sworn 12 July 2024 (Sampson affidavit CIV 1398). On 10 October 2024, the plaintiff filed and served an outline of submissions in support of the applications. On 2 September 2024, the defendant filed a defence and a purported counterclaim in respect to both proceedings. The defence and purported counterclaim filed are in the same terms in respect to both proceedings CIV 1397 of 2024 and CIV 1398 of 2024.