JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: SECURE FUNDING PTY LTD -v- AB [No 3] [2025] WASC 239
CORAM: SOLOMON J
HEARD: 13 JUNE 2025
DELIVERED : 18 JUNE 2025
FILE NO/S: CIV 2326 of 2013
BETWEEN: SECURE FUNDING PTY LTD
Plaintiff
AND
AB
Defendant
Catchwords:
Application for approval of an agreement pursuant to O 70 r 10 of the Rules of the Supreme Court 1971 (WA) - Person under disability - Application to approve proposed compromise of action - Whether the terms of the proposed agreement are for the benefit of the person under a disability
Legislation:
Australian Securities and Investments Commission Act 2001 (Cth), s 12CA, s 12CB
Public Trustee Act 1941 (WA), s 7
Rules of the Supreme Court 1971 (WA), O 67B r 5, O 70 r 3, O 70 r 10
Supreme Court Act 1935 (WA), s 16(1)(d)(ii)
Result:
Application granted
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr J Black |
| Defendant | : | Mr H Reynoldson |
Solicitors:
| Plaintiff | : | Norton Rose Fulbright |
| Defendant | : | Public Trustee |
Case(s) referred to in decision(s):
Duffell v Duffell [2015] ACTSC 123
Re JN Taylor Holdings Limited (In Liq) [2007] SASC 193
Russell v Russell (1976) 134 CLR 495
Scaffidi v Perpetual Trustees Victoria [2011] WASCA 159
Sosa v Carter [1978] WAR 123
Wood v Public Trustee (WA) (1995) 16 WAR 58
SOLOMON J:
These reasons concern the defendant's application, dated 23 January 2025, for approval of a compromise pursuant to O 70 r 10 of the Rules of the Supreme Court 1971 (WA) (Rules). The plaintiff supported the application for approval.
Background
The background is as follows.
In November 2009, the plaintiff (Secure Funding) advanced funds in the sum of $410,000 to the defendant (AB) pursuant to a written loan agreement. Pursuant to the terms of the loan agreement, AB granted a mortgage to Secure Funding over a property owned by AB in the suburb of Glen Forest, as security for the loan.
In June 2013, Secure Funding served a notice of default on AB and alleged that she had breached the terms of the loan agreement.
By a writ of summons dated 28 August 2013, endorsed with a statement of claim, the plaintiff issued these proceedings against AB. Secure Funding claimed, among other relief, possession of the Glen Forest property and payment of the outstanding loan which as of 16 August 2024, with accrued interest, amounted to $823,763.86. By 12 July 2022, Secure Funding claimed that the amount outstanding was over $1 million.
AB filed a defence and counterclaim. In essence the defence and counterclaim allege that the loan agreement is void as unconscionable.[1] The claim of unconscionability is made under the law of equity and pursuant to s 12CA and s 12CB of the Australian Securities and Investments Commission Act 2001 (Cth).
[1] Substituted Defence and Counterclaim, 31 August 2022, 6.
By orders dated 16 August 2023, pursuant to s 16(1)(d)(ii) of…
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- Case
- [2025] WASC 239
- Decision Date
CaseChat Overview and Summary
The court examined the evidence presented, which included expert opinions and assessments of AB's circumstances and needs. It was established that AB had suffered from a disability that impaired their ability to manage their affairs and make informed decisions. The court considered the terms of the proposed compromise, including the financial settlement and any non-financial benefits, and assessed whether these terms provided a genuine advantage to AB. The court also took into account the views of AB's guardians and legal representatives, who provided insights into AB's interests and preferences. Ultimately, the court concluded that the proposed agreement was in AB's best interests, as it provided a fair and reasonable resolution to the dispute, considering the totality of AB's circumstances.
Having found that the proposed compromise was for the benefit of AB, the court granted the application for approval of the agreement. The court's decision was based on a comprehensive assessment of the evidence and a careful consideration of AB's welfare. The court ordered that the terms of the proposed agreement be approved and that the litigation be compromised accordingly. This decision ensures that AB's interests are protected and that a fair resolution is reached in the circumstances.
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
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