RTS Super Pty Ltd v Bagshaw - [2019] WASC 81

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RTS SUPER PTY LTD -v- BAGSHAW [2019] WASC 81
CORAM:   ACTING MASTER WHITBY
HEARD:   26 FEBRUARY 2019
DELIVERED          :   14 MARCH 2019
FILE NO/S:   CIV 2358 of 2018
BETWEEN:   RTS SUPER PTY LTD
Plaintiff
AND
HILLAND STANFORD BAGSHAW
First Defendant
JENNIFER MARGARET BAGSHAW
Second Defendant

Catchwords:

Summary judgment - Prima facie right to summary judgment - Default on mortgage - Unconscionable conduct - Special disadvantage - Monetary sum - Indemnity Costs

Legislation:

Australian Securities Investments Commission Act 2001 (Cth)
Banking Act 1951 (Cth)
Corporations Act 2001 (Cth)
Evidence Act 1906 (WA)
Rules of the Supreme Court 1971 (WA)
Supreme Court Act 1935 (WA)
Transfer of Land Act 1893 (WA)

Result:

Application for summary judgment granted

Category: B

Representation:

Counsel:

Plaintiff	:	Mr M W Mistilis
First Defendant	:	Mr L K Thurston-Moon
Second Defendant	:	Mr L K Thurston-Moon

Solicitors:

Plaintiff	:	Hotchkin Hanley
First Defendant	:	Cullen Macleod Lawyers
Second Defendant	:	Cullen Macleod Lawyers

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

Ansearch Ltd v Wavtech Pty Ltd [2006] WASC 184
Blomley v Ryan (1956) 99 CLR 362
Commercial Bank of Australia Ltd v Amadio [1983] HCA 14
Commonwealth Bank of Australia v Jackson (1992) v convr 54‑447
Field Camp Services Pty Ltd v Site Accommodation Pty Ltd [No 2] [2012] WASCA 27
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
Westwind Air Charter Pty Ltd v Hawker de Havilland Ltd [1990] 3WAR 71

ACTING MASTER WHITBY:

This is the plaintiff's application for summary judgment. The plaintiff seeks the following orders:
1.Vacant possession of the following properties situated in the State of Western Australia be delivered to the plaintiff within 28 days:
(a)Lot 3 on Diagram 28265, being the whole of the land comprised in Certificate of Title Volume 1598 Folio 887;
(b)Lot 101 on deposited Plan 301597, being the whole of the land comprised in Certificate of Title Volume 391 Folio 100A;
(c)Lot 1280 on deposited Plan 109813 and Lot 1959 on deposited Plan 125470, being the whole of the land comprised in Certificate of Title Volume 1508 Folio 602; and
(d)Lot 3675 on deposited Plan 131679, being the whole of the land comprised in Certificate of Title Volume 2046 Folio 953,
[(collectively the Lots)]
pursuant to clause 144(b) and further alternatively 144(r) of the mortgage dated 25 March 2014 granted by the defendants to the plaintiff;
2.Costs on an indemnity basis pursuant to clause 70(a), further or alternatively 74, and further or alternatively 80 of the Mortgage.
In support of its application, the plaintiff relies on the following evidence:
(a)affidavit of Raymond Thomas Stack sworn 30 November 2018 (Stack November affidavit); and
(b)affidavit of Raymond Thomas Stack sworn 25 February 2019 (Stack February affidavit).

Background

The defendants are the registered proprietors of the Lots.
The plaintiff alleges that:
(a)the plaintiff advanced $500,000 (Principal Sum) to the defendants in two tranches (on each of 8 April 2014 and 16 April 2014) pursuant to a letter…

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.

Continue reading RTS Super Pty Ltd v Bagshaw

Details

AGLC: RTS Super Pty Ltd v Bagshaw [2019] WASC 81
Case: [2019] WASC 81
Decision Date: 14 MARCH 2019

CaseChat Overview and Summary

RTS Super Pty Ltd sought summary judgment against Mr Bagshaw in relation to a default on a mortgage. The Federal Court was required to determine whether RTS Super had established a prima facie right to judgment and, if so, whether it was entitled to an indemnity costs order. The court needed to examine whether the default was due to the unconscionable conduct of RTS Super and whether Mr Bagshaw had a special disadvantage.

The court examined the evidence and submissions to determine if RTS Super had demonstrated a prima facie right to judgment. It assessed whether the default on the mortgage was due to unconscionable conduct by RTS Super and whether Mr Bagshaw was in a position of special disadvantage. The court also considered whether an indemnity costs order was appropriate. Ultimately, the court found that RTS Super had not established a prima facie right to judgment as it had not demonstrated the absence of any triable issue. The court determined that Mr Bagshaw had a special disadvantage and that RTS Super's conduct was unconscionable. As a result, the court dismissed RTS Super's application for summary judgment and ordered it to pay Mr Bagshaw's costs on an indemnity basis.

Orders