Secure Funding Pty Ltd v Anand - [2023] WASC 441

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   SECURE FUNDING PTY LTD -v- ANAND [2023] WASC 441
CORAM:   WHITBY J
HEARD:   25 OCTOBER 2023
DELIVERED          :   17 NOVEMBER 2023
FILE NO/S:   CIV 1088 of 2023
BETWEEN:   SECURE FUNDING PTY LTD
Plaintiff
AND
MADAN G ANAND
Defendant

Catchwords:

Summary judgment - Order 14 of the Rules of the Supreme Court 1971 (WA) - Mortgage - Breach as a result of demolition of house on property without consent of plaintiff - Service of notice of default - Authority of attorney of the plaintiff - Whether continued payment of mortgage constitutes waiver of rights under mortgage

Legislation:

National Consumer Credit Protection Act 2009 (Cth)
Rules of the Supreme Court 1971 (WA)
Transfer of Land Act 1893 (WA)

Result:

Summary judgment granted

Category: B

Representation:

Counsel:

Plaintiff	:	K Link
Defendant	:	In Person

Solicitors:

Plaintiff	:	Norton Rose Fulbright Australia
Defendant	:	In Person

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

Agar v Hyde (2000) 201 CLR 552
Bank of Western Australia v Stein [2005] WASC 43
Black Box Control Pty Ltd v TerraVision Pty Ltd [2016] WASCA 219
Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337
Commonwealth Bank of Australia Ltd v Shaddick [2011] WASC 205
Edenham Pty Ltd v Meares [2016] WASC 301
Electricity Generation Corporation v Woodside Energy [2014] HCA 7; (2014) 251 CLR 640
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Field Camp Services Pty Ltd v Site Accommodation Pty Ltd [No 2] [2012] WASCA 27
Gunn v Land Mortgage Bank of Victoria Ltd (1890) 12 ALT 49
Hall v Hall [2007] WASC 34
Hillboi Nominees Pty Ltd v Evenwood Pty Ltd [2000] WASC 66
Irving v Commissioner of Titles [1963] WAR 67
McLean v Westpac Banking Corporation [2012] WASCA 152
Morton v Suncorp Finance Ltd (1987) 8 NSWLR 325
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 89 ALJR 990
Muranna Park Pty Ltd & Ors v Southern Mortgages Ltd [2017] VSC 222
National Australia Bank v Norman [2012] VSC 14
St George Bank v Hammer (No.2) [2015] NSWSC 953
Westgyp Pty Ltd v Northline Ceilings Pty Ltd [No 2] [2019] WASCA 145
Westpac Banking Corporation v Anderson [2017] WASC 106
Westpac Banking Corporation v Davey [2016] WASC 316
Westpac Banking Corporation v Mason [2011] NSWSC 1241
Westpac Banking Corporation v McLean [2012] WASC 182
Yap Cheng See v Challenge Bank Ltd (Unreported, WASC, Library No 970695, 12 December 1997)

WHITBY J:

Summary

The plaintiff loaned the defendant money and took a mortgage over the defendant's property as security. The property had a house on it which was demolished at the direction of the City of Stirling because it was uninhabitable and a health hazard. The terms of the relevant loan agreement and mortgage provisions provided that the defendant would be in breach if…

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: [2023] WASC 441
Decision Date: 17 NOVEMBER 2023

CaseChat Overview and Summary

Secure Funding Pty Ltd brought an application for summary judgment against Anand seeking to enforce a mortgage. The mortgage was secured over property owned by Anand, who had defaulted by demolishing the house on the property without the plaintiff’s consent. The plaintiff claimed that Anand’s conduct constituted a breach of the mortgage. The plaintiff sought an order that the mortgagee take possession of the property and sell it in order to satisfy the debt. Anand opposed the application, arguing that the plaintiff had waived its rights under the mortgage by continuing to accept payments from him. The primary issue for the court was whether the plaintiff had waived its rights under the mortgage by continuing to accept payments from Anand. The court held that the Power of Attorney was not limited to those team leaders who worked for Liberty Financial. The Power of Attorney was granted to permanent employees of Liberty Financial, and there was no limitation in the language of the Power of Attorney that would exclude team leaders from subsidiaries within the Liberty Group. The court held that the plaintiff had not waived its rights under the mortgage by continuing to accept payments from Anand. The court found that the Power of Attorney was valid and effective, and that the plaintiff had the authority to serve a notice of default on Anand. The court granted the plaintiff’s application for summary judgment and ordered that the mortgagee take possession of the property and sell it in order to satisfy the debt.

Orders

Orders of the court

Full text does not contain this section.

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

In Electricity Generation Corporation v Woodside Energy[41] and Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd[42] the High Court reaffirmed that the rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract) and purpose. [41] Electricity Generation Corporation v Woodside Energy [2014] HCA 7; (2014) 251 CLR 640 (Electricity Generation).[42] Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 89 ALJR 990 (Mount Bruce Mining). A court will ordinarily be able to construe the terms of a contract by reference to the contract alone. However, evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning.[43] [43] Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337, 352. Although the Power of Attorney is executed as a deed, as opposed to a contract, the principles governing the interpretation of contracts apply equally to the interpretation of a deed.[44][44] Hillboi Nominees Pty Ltd v Evenwood Pty Ltd [2000] WASC 66 [38] - [49]; Westgyp Pty Ltd v Northline Ceilings Pty Ltd [No 2] [2019] WASCA 145 [154]. The relevant words of the Power of Attorney which this court is required to construe are 'any permanent employee at Liberty Financial … with the job title of 'Team Leader'. The defendant submits that the Power of Attorney must be construed as applying only to those persons who are permanent employees of Liberty Financial and whose job title with Liberty Financial is team leader.[45][45] Defendant's Submissions [20(e)]. On the plain meaning of the words, an Attorney is any permanent employee at Liberty Financial with the title of 'Team Leader'. Mr Mercieca is a permanent employee of Liberty Financial and has the title of team leader with Assured Credit, a subsidiary within the Liberty Group, as is Liberty Financial. There is nothing in the language of the Power of Attorney, properly construed, that points to the limitation that the attorney must be a team leader with Liberty Financial, as opposed to a team leader with an entity within the Liberty Group. The proviso is that the attorney must be a permanent employee of Liberty Financial. It is important to construe the Power of Attorney having regard to the whole of the instrument. The Power of Attorney is granted by the plaintiff, a subsidiary of the Liberty Group, to permanent employees of Liberty Financial, also a subsidiary of the Liberty Group. Add to this the objective evidence of background facts which provide context as to the genesis of the Power of Attorney. It is the undisputed evidence of Mr Mercieca that the Liberty Group consists of the following subsidiaries and the role that each subsidiary has within the Liberty Group:(1)the plaintiff is responsible for funding all loans;[46](2)Liberty Financial is responsible for the day to day operations of the all entities within the Liberty Group - including employing staff;[47]and(3)Assured Credit is responsible for managing the loans provided by the plaintiff and to act on the plaintiff's behalf to collect loans and commence legal proceedings if required.[48][46] Second Mercieca Affidavit [8].[47] Second Mercieca Affidavit [7].[48] Second Mercieca Affidavit [9].