Prime Capital Securities Pty Ltd v Hirsch
[2025] WASC 267
•4 JULY 2025
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 plaintiff.
The amount advanced with respect to and secured over 42 West Coast Drive was $2,400,000. The amount advanced with respect to and secured over 42A West Coast Drive was $1,685,000. I will refer to the two properties at 42 West Coast Drive and 42A West Coast Drive as the (Land).
The borrower under the Loan Agreements was FTD Construction Pty Ltd (FTD Construction). The defendant guaranteed FTD Construction's obligations under the Loan Agreements and granted the plaintiff mortgages over the Land as security for the loans. The plaintiff contends that FTD Construction defaulted on the Loan Agreements and given that the default was not remedied by either FTD Construction or the defendant, the plaintiff is now entitled to take possession of the Land.
The claim by the plaintiff in proceedings CIV 1397 of 2024 and CIV 1398 of 2024 are identical with the affidavits filed by both the plaintiff and the defendant being in substantially the same terms. Further, the defence filed by the defendant in each proceeding are in the same terms.
Applicable legal principles
The legal principles relating to applications for summary judgment are well established. The power to grant summary judgment should be exercised with great care, and summary judgment should only be granted in the clearest of cases where there is no real issue to be tried.
The key principles were summarised by the Court of Appeal in Sutton Investments Pty Ltd v Realistic Investments Pty Ltd,[3] as follows:
… Summary judgment will be granted only when there is no real question to be tried. The power to order summary judgment is one that should be exercised with great care: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99. It is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if it went to trial, that summary judgment ought properly be granted: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57]; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [46]; Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [24], [53] - [55].
[3] Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24].
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].
Procedural history
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.
The defendant filed his own affidavits, sworn 2 September 2024,[10] and an outline of submissions in opposition to the application for summary judgment.
[10] Affidavit of Mr Hirsch sworn 2 September 2024 in opposition to summary judgment (Defendant affidavit CIV 1397); Affidavit of Mr Hirsch sworn 2 September 2024 in opposition to summary judgment (Defendant affidavit CIV 1398).
On the eve of the hearing of this application, the plaintiff filed a further affidavit in support of the application, being the affidavit of Mr Timothy Kennedy, legal practitioner, sworn 15 October 2024. Mr Kennedy deposes that communications had recently been received from the City of Joondalup that the property at 42 West Coast Drive had sustained damage and required immediate rectification work.[11] Mr Kennedy produced photographs of the property. As a consequence, the plaintiff has taken possession of the property at 42 West Coast Drive.[12]
[11] Affidavit of Mr Kennedy sworn 15 October 2024 [4] - [7].
[12] Affidavit of Mr Kennedy sworn 15 October 2024 [12].
Pre‑conditions to the making of an application for summary judgment
Both proceedings are mortgage actions within the meaning of O 4AA. Accordingly, pursuant to O 4AA r 3(2), a notice in Form 4 was required to be attached to the front of the writ when it was served.
Further, O 14 r 1 and r 2 of the RSC set out certain procedural pre‑conditions to the making of an order for summary judgment. They are:
(1)a statement of claim has been served on the defendant;
(2)the defendant has entered an appearance;
(3)the application is supported by an affidavit verifying the facts on which the claim is made; and
(4)the affidavit in support states that in the deponent's belief, there is no defence to the claim.
The statement of claim dated 10 April 2024 has been served.
On 2 May 2024, a memorandum of appearance was entered by the defendant.
Mr Sampson deposes in his affidavits the relevant facts on which the application is made and produces supporting documentation in support of the application. Mr Sampson deposes that the defendant has no defence to the claim in the Writ of Summons and that there is no real issue to be tried.
The pre‑conditions are therefore satisfied.
Plaintiff's claim
The plaintiff's claim as pleaded in the statements of claim filed and dated 10 April 2024 is for the payment of a sum to remedy a default under two guarantees and two mortgages and to take vacant possession of the Land.
The Sampson Affidavit CIV 1397 establishes the following in respect to the property at 42 West Coast Drive:
(1)the plaintiff, FTD Construction and the defendant entered into the Loan Agreement on 29 July 2021, pursuant to which the plaintiff advanced $2,400,000 to FTD Construction;[13]
(2)the defendant guaranteed the obligations of FTD Construction to the plaintiff;[14]
(3)the defendant granted the plaintiff the mortgage over the Land as security for the loan;[15]
(4)the Loan Agreement required FTD Construction to pay the plaintiff interest[16] and a loan management fee[17] on or before the first day of each month;
(5)FTD Construction defaulted on the Loan Agreement as, at 28 February 2023, it had failed to pay interest, loan management fees and default administration fees of $252,585.50;[18]
(6)on 28 February 2023, the plaintiff issued FTD Construction and the defendant with default notices, and demanded repayment of the sum of $252,585.50 to remedy the default;[19]
(7)FTD Construction and/or the defendant did not remedy the default;[20]
(8)on 28 November 2023, the (Termination Date), the plaintiff terminated the loan facility under the Loan Agreement and gave FTD Construction and the defendant written notices demanding repayment of $2,997,374.08, being the secured money due under the Loan Agreement at that date;[21]and
(9)the defendant has failed to pay the plaintiff the secured money under the Loan Agreement.[22]
[13] Sampson Affidavit CIV 1397 [6], Annexure S3, page 16.
[14] Sampson Affidavit CIV 1397, Annexure S3, page 52, Loan Agreement cl 14.
[15] Sampson Affidavit CIV 1397, Annexure S3, page 43, Loan Agreement cl 11; Annexure S5, page 106.
[16] Sampson Affidavit CIV 1397, Annexure S3, page 31, Loan Agreement cl 5.1.
[17] Sampson Affidavit CIV 1397, Annexure S3, page 32, Loan Agreement cl 6.3.
[18] Sampson Affidavit CIV 1397 [14].
[19] Sampson Affidavit CIV 1397 [15] - [17], Annexures S6 - S9, pages 108 - 119.
[20] Sampson Affidavit CIV 1397 [18].
[21] Sampson Affidavit CIV 1397 [19] - [22], Annexures S10 - S13, pages 120 - 128.
[22] Sampson Affidavit CIV 1397 [23] - [24], Annexure S14, pages 129 - 132.
The Sampson Affidavit CIV 1398 establishes the following in respect to the property at 42A West Coast Drive:
(1)the plaintiff, FTD Construction and the defendant entered into the Loan Agreement on 29 July 2021, pursuant to which the plaintiff advanced $1,685,000 to FTD Construction;[23]
(2)the defendant guaranteed the obligations of FTD Construction to the plaintiff;[24]
(3)the defendant granted the plaintiff the mortgage over the Land as security for the loan;[25]
(4)the Loan Agreement required FTD Construction to pay the plaintiff interest[26] and a loan management fee[27] on or before the first day of each month;
(5)FTD Construction defaulted on the Loan Agreement as, at 28 February 2023, it had failed to pay interest, loan management fees and default administration fees of $161,423.69;[28]
(6)on 28 February 2023, the plaintiff issued FTD Construction and the defendant with default notices, and demanded repayment of the sum of $161,423.69 to remedy the default;[29]
(7)FTD Construction and/or the defendant did not remedy the default;[30]
(8)on 28 November 2023, the (Termination Date), the plaintiff terminated the loan facility under the Loan Agreement and gave FTD Construction and the defendant written notices demanding repayment of $2,088,105.40, being the secured money due under the Loan Agreement at that date;[31]and
(9)the defendant has failed to pay the plaintiff the secured money under the Loan Agreement.[32]
[23] Sampson Affidavit CIV 1398 [6], Annexure S3, page 16.
[24] Sampson Affidavit CIV 1398, Annexure S3, page 52, Loan Agreement cl 14.
[25] Sampson Affidavit CIV 1398, Annexure S3, page 43, Loan Agreement cl 11; Annexure S5, page 106.
[26] Sampson Affidavit CIV 1398, Annexure S3, page 31, Loan Agreement cl 5.1.
[27] Sampson Affidavit CIV 1398, Annexure S3, page 32, Loan Agreement cl 6.3.
[28] Sampson Affidavit CIV 1398 [13].
[29] Sampson Affidavit CIV 1398 [14] - [16], Annexures S6 - S9, pages 108 - 119.
[30] Sampson Affidavit CIV 1398 [17].
[31] Sampson Affidavit CIV 1398 [18] - [21], Annexures S10 - S13, pages 120 - 126.
[32] Sampson Affidavit CIV 1398 [22] - [23], Annexure S14, pages 127 - 130.
Accordingly, the plaintiff submits that pursuant to cl 4.1 of the Loan Agreement, FTD Construction was obliged to pay the secured money on the Termination Date. Further, pursuant to cl 17.1 of the Loan Agreement, the secured money includes all money which FTD Construction was liable to pay to the plaintiff, namely the advance, fees and interest. The plaintiff submits that FTD Construction has failed to pay the plaintiff the secured money. Pursuant to cl 14 of the Loan Agreement, the defendant guaranteed FTD Construction's obligations to the plaintiff. Pursuant to cl 8(a) and cl 8(b) of pt 6 of the Loan Agreement, the failure by the defendant to pay the plaintiff the secured money was an event of default. Accordingly, pursuant to cl 9.2(c) and cl 9.2(e) of pt 6 of the Loan Agreement, the plaintiff, upon the occurrence of an event of default, is entitled to eject the occupants, enter the premises or otherwise take possession of the land.
The defendant's submissions
The defendant, as I have observed, relies upon his written submissions and his affidavits sworn 2 September 2024. The defendant developed his written submissions and affidavits in oral submissions at the hearing.
By the defence filed, the defendant has admitted, relevantly:
(1)the defendant is the registered proprietor of the Land;
(2)the plaintiff advanced $4,085,000 to FTD Construction, being:
(a)$2,400,000 under the Loan Agreement with respect to 42 West Coast Drive; and
(b)$1,685,000 under the Loan Agreement with respect to 42A West Coast Drive;
(3)the defendant executed the Loan Agreements, which had the effect that the defendant guaranteed FTD Construction's obligations under, and performance of, the Loan Agreements;
(4)the defendant granted:
(a)Mortgage O820236 to the plaintiff over 42 West Coast Drive; and
(b)Mortgage O820228 (in substantively identical terms) to the plaintiff over 42A West Coast Drive, collectively the (Mortgages);
(5)pursuant to the Mortgages, the defendant agreed that if an event of default occurred under the Mortgages, the plaintiff would be entitled to take possession of the land.
The defendant pleads the following in his defence response to the claim:[33]
(1)Financial hardship arising from the COVID-19 pandemic caused him to have difficulties in making payments due under the Loan Agreements for the period June to September 2022.
(2)The plaintiff contacted the defendant by telephone regarding making the payments which resulted in him making up the missing payments on each facility approximately two weeks after the dates that they were due (Agreed Arrangement).
(3)This Agreed Arrangement continued for a period of three months until 1 September 2022, from which date payments were again made as due on about the first of each month.[34]
(4)The defendant was 'regularly assured by a staff member of the plaintiff that penalty interest would not be imposed on the facilities' provided that the payments due from thereon were made on time. Further, the previous defaulted interest would be capitalised as a result of the Agreed Arrangement.
(5)Accordingly, the defendant proceeded to make all payments due under the Loan Agreements in accordance with the Agreed Arrangement.
[33] Defence filed 2 September 2024 [9].
[34] Defence filed 2 September 2024 [9].
In addition, the defence, under the heading 'Counterclaim', states that the defendant seeks an order for the release of recorded telephone transcripts between the plaintiff's hotline and the defendant. Further, that the defendant wishes to pursue damages in the amount of $20,782.74 resulting from the plaintiff's excessive and predatory action and for the reimbursement of disbursements.[35]
[35] Defence filed 2 September 2024.
The defendant deposes in his affidavits, among other things, that he was suffering hardship caused by the COVID-19 pandemic, being that, similar to other developers, he suffered increased costs and labour shortage.[36] The defendant contends that the plaintiff failed to act in accordance with an ASIC announcement dated 30 August 2023 that lenders must have the 'right arrangements in place to respond to requests from customers experiencing financial hardship'.[37] The defendant deposes that, in his opinion, the loan was not suitable for his financial situation.
[36] Defendant affidavit CIV 1397, page 2; Defendant affidavit CIV 1398, page 2.
[37] Defendant affidavit CIV 1397, page 2; Defendant affidavit CIV 1398, page 2.
In respect to the oral representations contended to have been made by a representative of the plaintiff, the defendant deposes that:[38]
[38] Defendant affidavit CIV 1397, page 3; Defendant affidavit CIV 1398, page 3.
1.I had difficulty making the payments due under each of the facilities for the period from June until September 2022 as a result of hardship arising from cash flow difficulties caused by the Covid Pandemic in Western Australia.
2.I contacted the Plaintiff by telephone in relation to this issue which resulted in me making up the missing payments on each facility approximately two weeks after the dates that they were due. This process continued for a period of three months until 1 September 2022, from which date payments were again made as they fell due on or about the first of each month.
3.I was regularly assured by a staff member of the Plaintiff that penalty interest would not be imposed on the facilities moving forward provided that the payments due from thereon were made on time and furthermore, that all previous defaulted interest would be capitalised as a result of this arrangement.
4.I proceeded to make all payments due under both loans in accordance with this agreed arrangement and the original terms of the Loan Agreement.
5.Despite being offered 'hardship relief' during this period by reason of my stated financial position, however, such offer was retracted following the review of the evidence I provided.
6.I consider the constant inconsistent treatment by the Plaintiff as being misleading and deceiving conduct.
7.I was charged interest at the higher penalty rate each month on both facilities.
8.The action of imposing penalty interest rates for payments made on a different date each month in accordance what I believed to be mutually agreed, is considered usurious and unconscionable.
9.The penalty rates imposed are almost four times the rates that are ordinarily payable under the terms of the loan.
10.At various points within this term, the Plaintiff made offers in writing to waive or capitalise some of the penalty interest imposed, however did not follow through to provide clear or sufficient information in relation to these offers to render them capable of acceptance.
11.I made additional payments towards the penalty rates imposed.
12.I attempted on numerous occasions from 15 December 2022 onwards to notify the Plaintiff of my decision to discharge both of the facilities. This refinance would have paid out the Principal Amount of both loans (excluding the disputed penalty interest). However, the Plaintiff refused to accept the PEXA Settlement Booking to complete the refinance. This outcome has resulted in significant costs and penalties to the me.
In support of his contentions, the defendant produces email correspondence between the defendant and plaintiff. The email chain is difficult to follow for the reason that the documents produced are incomplete and the full necessary correspondence to understand the emails is not produced.
By email from the plaintiff to the defendant dated 12 October 2022, it is stated that 'in order to look into this and determine what actually happened and what type of agreement was reached, we need the name of the individual you spoke with during that phone call as well as the time it took place'.[39] The author of the email (the plaintiff's representative) stated that agreements are only made in writing and not 'over the phone'.[40] However, the plaintiff's representative requests further information regarding the late payments and the defendant's proposed strategy and plan of action.
[39] Defendant affidavit CIV 1397, Annexure RH1; Defendant affidavit CIV 1398, Annexure RH1.
[40] Defendant affidavit CIV 1397, Annexure RH1; Defendant affidavit CIV 1398, Annexure RH1.
The second email was sent by the defendant to the plaintiff, which is undated and states that 'I was led to understand from my telephone conversation that the penalties in respect to these late payments in June, July and August (comprising an increase in interest to 18% of the outstanding balance plus a $500 Default Administration Fee) would be capitalised into the loan, with the repayments then continuing at the standard 4.95% interest rate'.[41] The defendant refers, inter alia, to increased costs arising from supply chain disruptions, inflationary costs and issues arising from the COVID-19 pandemic.
[41] Defendant affidavit CIV 1397, Annexure RH1, page 5; Defendant affidavit CIV 1398, Annexure RH1, page 5.
The third email produced is an email from the plaintiff to the defendant sent 6 December 2022. In that email, the plaintiff quotes a line from a previous email that 'out of goodwill, we are willing to waive the higher rate for September and October on the condition that you pay the fees for the late payments mentioned above in June, July and August as well as the interest rate difference by 18 November'. In that email, the author states that the defendant had been told in multiple emails that the plaintiff does not capitalise payment fees. The plaintiff confirms that the amounts payable were highlighted in a previous email being $108,325.82 and $76,104.26. The author asks that the defendant provide receipts showing that payments in the amount of $108,325.82 and $76,104.26 have been paid.
The fourth email produced is an email from the defendant to the plaintiff, undated. The defendant in that email affirms his understanding from a telephone call with an unidentified representative of the plaintiff that the interest payable, including 'default higher interest', would be capitalised. The defendant maintains that his understanding was that it was not necessary to make payment of the outstanding arrears identified by the plaintiff in the email of 12 October 2022.
Counsel for the plaintiff in oral submissions observed that the defendant has not included the 'fulsome record of the email chains' between the parties. That is so. Consequently, it is somewhat challenging to understand what the defendant contends transpired between him and the plaintiff.
The defendant in oral submissions stated that the last paragraph in the email of 6 December 2022 referring to the amounts highlighted in the prior email namely, $108,325.82 and $76,104.26 was merely a reminder of the amount that was 'fully owed on the loans' and not what was required to be paid under the contended agreement.
Counsel for the plaintiff disputes that construction of the correspondence, submitting that the defendant has, in effect, made an error and that he has relied upon the first highlighted section in the email that has been quoted, being 'in order to return to the lower rate and put everything back on track, the difference of $6,282.74 for the loan 2105157, and $9,000 for the loan 2105137 for the months of September and October will need to be paid'. The plaintiff states that the defendant has not considered the further highlighted part of that email which states the total arrears for the two loans and the outstanding amounts under the Loan Agreements. Counsel for the plaintiff during oral submissions stated that the whole deal was for payment of the full amounts and that the full amounts were not paid. In support, there is an outstanding debt due and payable, and the defendant was in arrears. Given that the amounts and the principal amount are all outstanding, the plaintiff submits there is a default even on the construction of the contended agreement preferred by the defendant. [42] That is so.
[42] ts 29 ‑ 30 (16/10/2024).
Counsel for the plaintiff stated that there may have been a telephone call, although there is no evidence of that. However, counsel submitted that the contended agreement would not have been determined by way of a telephone call given that the Loan Agreements require that such matters be stated in writing.[43]
[43] ts 27 (16/10/2024).
Counsel for the plaintiff in oral submissions correctly observed that it was unfortunate that the defendant did not include the fulsome record of the email chain between the parties. However, the plaintiff submits that notwithstanding the entire email correspondence has not been produced, there was sufficient correspondence provided for the court to make a determination in respect to the claim for summary judgment.[44] I agree with that submission.
[44] ts 27 (16/10/2024).
Assessment
I am left in this position with respect to the defendant's contentions made in his written and oral submissions. I am not bound to accept uncritically the contentions of disputed facts that are raised by the defendant. I must assess the contentions in light of the material that I have received and is before me. However, if after argument there remains real uncertainty as to the plaintiff's right to judgment without further investigation of the facts, summary judgment must be refused.[45]
[45] Perpetual Trustee v Nikoloff [2020] WASC 389 [14].
The matters raised in opposition to the summary judgment application do not provide an arguable defence to the plaintiff's claims, nor do they provide any other basis that justifies a refusal to grant summary judgment. The defendant has raised a myriad of issues that do not rise higher than conjecture.
The defendant asserts that an agreement was made with an unnamed representative of the plaintiff by telephone on an unknown date with the terms not known nor any subsequent documentary evidence being produced to support that contended oral representation. Further, cl 12.5(a) of the Loan Agreements provides that no waiver by the lender of any of its rights or obligations under the Loan Agreements is effective unless it is made in writing by the lender. The emails are relied upon by the defendant to raise conjecture that provides no defence to the claim for summary judgment. The contention of the plaintiff that the amounts of $6,282.74 and $9,000 stated in the email are the amounts that he was required to pay is contrary to the written agreement and further, is contradicted by the sentences that follow in that email. The email, properly understood, states that the late payment fees were only a component of the amount to be paid and that the late payments for June, July and August and the interest rate differences, were required to be paid. The amounts to be paid are stated in the email.
Therefore, I do not accept the assertions of the defendant, unsupported by documentary evidence, of various offers by the plaintiff to waive or capitalise various amounts relevant to the Loan Agreements. For any waiver by the lender of any of its rights or obligations under the Loan Agreements to be effective, it must be made in writing by the lender. Further, any written variation to the Loan Agreements must be signed by the parties. There is no evidence in writing of any such waivers or variations. There was no concluded agreement between FTD Construction and the plaintiff to waive any amounts under the Loan Agreements. Any further payments made to the plaintiff with respect to the Loan Agreements did not and could not remedy the continuing default.
I am satisfied that as at 28 February 2023, when the plaintiff issued default notices to FTD Construction and the defendant, the plaintiff terminated the Loan Agreements and issued further default and demand notices to FTD Construction and the defendant and FTD Construction remained in default of the Loan Agreements.
The unsupported assertions of the defendant do not relieve the defendant of his obligations under the Loan Agreements. I accept the plaintiff's submission that there is no defence to the plaintiff's claim.
Counterclaim
The purported counterclaim does not disclose any recognised cause of action against the plaintiff. The matters raised are of no relevance to the applications for summary judgment.
Orders and Costs
Accordingly, in respect to CIV 1398 of 2024, it is ordered that there be summary judgment for the plaintiff pursuant to O 14 r 1(1) of the RSC, that the defendant give to the plaintiff vacant possession of the land situated and known as 42A West Coast Drive, Marmion within 14 days of this order.
In respect to CIV 1397 of 2024, the plaintiff has taken vacant possession of the land known as 42 West Coast Drive, Marmion. Therefore, the appropriate order is that there be summary judgment for the plaintiff pursuant to O 14 r 1(1) of the RSC, that the plaintiff is entitled to vacant possession of the land situated and known as 42 West Coast Drive, Marmion.
The plaintiff seeks an order that the defendant pay the plaintiff's costs of the action and this application for summary judgment on an indemnity basis to be assessed if not agreed.
A mortgagee may rely upon its contractual entitlement to costs so as to claim an order other than on a party/party basis.[46] In a contractual action, where the contract includes plain and unambiguous terms allowing for costs to be paid on a specified basis with respect to litigation relating to the contract, a court will ordinarily exercise its discretion in a manner consistent with the contract.[47]
[46] Secure Funding Pty Ltd v Stark; Secure Funding Pty Ltd v Conway [2013] NSWSC 1536 [6].
[47] Gamba Holdings UK Limited v Minories Finance Limited [1993] Ch 171, 194; Rumball v Mortimore [2000] WASC 126 [15]; Bank of Western Australia v Marsh [2000] WASC 208 [5] ‑ [7]; Boon v Burt [2020] WASC 64 (S).
The plaintiff relies upon cl 12.2(a)(iv) and cl 12.2(b) of the Loan Agreements[48] which provide for recovery of the plaintiff's legal costs and expenses on a full indemnity basis.
[48] Sampson affidavit CIV 1397, Annexure S3, page 44.
I am satisfied that no circumstances exist in this case which would in any way compromise the plaintiff's claim for indemnity costs. It would be unfair and unreasonable to deprive the plaintiff of an order for indemnity costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RH
Associate to the Hon Justice McGrath
4 JULY 2025
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