JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: PRIVATE LENDER PTY LTD -v- MOODLEY [2025] WASC 418
CORAM: MASTER RUSSELL
HEARD: 30 SEPTEMBER 2025
DELIVERED : 2 OCTOBER 2025
FILE NO/S: CIV 1907 of 2024
BETWEEN: PRIVATE LENDER PTY LTD
Plaintiff
AND
MERVIN MOODLEY
First Defendant
PRENITHA NAIDOO
Second Defendant
Catchwords:
Practice and procedure - Summary judgment - Mortgage action - Application for possession of property - Turns on own facts
Practice and procedure - Summary judgment - Application for leave to apply for summary judgment pursuant to O 14 r 1 Rules of the Supreme Court 1971 (WA) - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA) O 14, O 14 r 1, O 14 r 2(1)
Result:
Application granted
Summary judgment entered for the plaintiff against the first and second defendant
Order for possession of mortgaged property
Category: B
Representation:
Counsel:
| Plaintiff | : | C Breheny |
| First Defendant | : | In Person |
| Second Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Parsons & Partners |
| First Defendant | : | In Person |
| Second Defendant | : | In Person |
Case(s) referred to in decision(s):
Australian Securities and Investments Commission v Channic Pty Ltd (No 4) [2016] FCA 1174
Australian Securities and Investments Commission v Kobelt [2019] HCA 18; (2019) 267 CLR 1
Bendigo and Adelaide Bank Ltd v Brackenridge [2020] SASC 114
Deputy Commissioner of Taxation v Lafferty [2017] WASC 257
Kellas-Sharpe v PSAL Limited [2013] 2Qd R 233; 2012 QCA 371
Oxygen Funding Solutions Pty Ltd v Dick-Telfar [2020] NSWSC 582
Permanent Custodians Ltd v Upston [2007] NSWCA 41
Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
MASTER RUSSELL:
Introduction
The first and second defendants, Mervin Moodley and Prenitha Naidoo, are the registered proprietors of the land and property situated in Highgate in the State of Western Australia, described as Lot 30 on Plan 1106 and being the whole of the land in Certificate of Title Volume 1396 Folio 251 (Property).
The plaintiff, Private Lender Pty Ltd, commenced these proceedings against the first and second defendants in August 2024. It seeks possession of the Property pursuant to the terms of a loan agreement between the plaintiff and Project Service Consultants Pty Ltd (ACN 650 492 425) (Borrower) and the first and second defendants as guarantors, and a mortgage granted by them over the Property.
By chamber summons filed on 18 March 2025, the plaintiff applies for summary judgment against the first and second defendants pursuant to Order 14 of the Rules of the Supreme Court 1971 (WA) (RSC) (Application). In support of the Application, the plaintiff relies on an affidavit of Abbas Khaimov, sole director and secretary of the plaintiff, affirmed on 18 March 2025 (Khaimov Affidavit).
The plaintiff also seeks leave to bring the Application against the first defendant, as it was not made within 21 days…
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- AGLC
- Private Lender Pty Ltd v Moodley [2025] WASC 418
- Case
- [2025] WASC 418
- Decision Date
CaseChat Overview and Summary
The court assessed the delay in bringing the application against Moodley, noting that while the application was filed more than 21 days after Moodley's appearance, the plaintiff had not filed a separate application within the stipulated period to avoid inefficiency. The court found that the delay was not undue since the application was still made at an early stage before a defence was filed and there was no evidence of prejudice to Moodley. The court also considered the merits of the application, which supported the granting of leave for summary judgment. The plaintiff's affidavit satisfied the requirements of Rule 2(1) of Order 14, establishing the facts and asserting the absence of a defence. The court concluded that the plaintiff had shown that there was no real question to be tried, as the evidence was clear and undisputed, justifying the granting of summary judgment.
The court granted the plaintiff leave to apply for summary judgment against Moodley, extending the time limit to the date of filing. The court also granted summary judgment against Moodley for possession of the property, as the plaintiff had demonstrated that there was no real question to be tried. The court did not grant leave for summary judgment against the second defendant, as the application was within the 21-day limit. The orders included granting leave for summary judgment against Moodley, ordering possession of the property to the plaintiff, and denying leave for summary judgment against the second defendant.
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 21-day limit to bring an application for summary judgment reflects the view that such applications should be brought at an early stage of the proceedings. Where there is a delay, the onus is on the applicant to demonstrate that the delay is justifiable in all of the circumstances.[2][2] See Westpac Banking Corporation v Anderson [2017] WASC 106 [38] (Pritchard J) and the authorities referred to. The first defendant entered an appearance on 2 September 2024 and an amended appearance on 2 October 2024. The Application was filed on 18 March 2025, approximately six and a half months after the first defendant entered his appearance. As such, the plaintiff requires, and has sought, leave to bring the Application as against the first defendant. The second defendant entered an appearance on 5 March 2025, within the 21-day limit. As such, leave to bring the Application is not required in respect of the second defendant. In relation to the delay in bringing the Application as against the first defendant, the plaintiff says that it did not bring an application for summary judgment against the first defendant within 21 days of appearance in the interests of efficiency. Rather it brought one Application against both defendants after service of the writ on the second defendant and within 21 days of the second defendant's appearance. I am satisfied that, although there was a delay in bringing the Application, it is not an undue delay. The Application is still brought at an early stage of the proceedings and before a defence was filed. There is no evidence of any prejudice to the first defendant caused by the delay in bringing the Application against him more than 21 days after his appearance was filed. The merits of the Application are also a relevant consideration. For the reasons I will develop, the merits of the Application are such that leave ought to be granted, in any event. For these reasons, I am satisfied that leave to bring the Application against the first defendant should be granted, the time for which is extended to the date of filing, 18 March 2025. An application pursuant to O 14 RSC must be supported by an affidavit verifying the facts upon which the claim is based and stating that, in the deponent's belief, there is no defence to the claim.[3][3] RSC O 14 r 2(1). The legal principles relating to applications for summary judgment are well established. The key principles were summarised in Sutton Investments Pty Ltd v Realistic Investments Pty Ltd, as follows:[4]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].[4] Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24].