Secure Funding Pty Ltd v Lock - [2022] WASC 276

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   SECURE FUNDING PTY LTD -v- LOCK [2022] WASC 276
CORAM:   DERRICK J
HEARD:   15 AUGUST 2022
DELIVERED          :   15 AUGUST 2022
PUBLISHED           :   25 AUGUST 2022
FILE NO/S:   CIV 2190 of 2018
BETWEEN:   SECURE FUNDING PTY LTD
Plaintiff
AND
PATRICK MICHAEL LOCK
Defendant

Catchwords:

Application under section 15(1) of the Civil Judgments Enforcement Act 2004 (WA) to suspend the enforcement of a judgment - Whether special circumstances justifying the making of a suspension order exist - Turns on own facts

Legislation:

Civil Judgments Enforcement Act 2004 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	Not applicable
Defendant	:	In person

Solicitors:

Plaintiff	:	Norton Rose Fulbright Australia
Defendant	:	Not applicable

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

Commonwealth Bank of Australia v PBT (WA) Pty Ltd [2019] WASC 365
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Sims v Suda Ltd [2014] WASCA 113
Sims v Suda Ltd [No 2] [2015] WASC 180

DERRICK J:

(This judgment was delivered extemporaneously on 15 August 2022 and has been edited from the transcript).

Introduction

The defendant, Mr Patrick Michael Lock, who is self-represented, has made an urgent application under s 15(1) of the Civil Judgments Enforcement Act 2004 (WA) (CJEA) for an order suspending the enforcement of a judgment (application). The application is supported by an affidavit sworn by the defendant dated 15 August 2022.
The application and supporting affidavit were only accepted for filing by the court late today, outside of business hours. At the time of notifying the defendant by email that the application and affidavit had been accepted for filing the Associate to the Principal Registrar of the court advised the defendant that if he believed that the application was of such urgency that it needed to be dealt with tonight he could contact the court's duty judge.
Earlier this evening, at about 8.00 pm, the defendant requested the urgent listing of the application before me as the duty judge. In response to the defendant's request I arranged for the application to come before me on an urgent basis.
Given the lateness of the hour it has not been possible for my associate to make contact with the plaintiff's solicitors to advise them of the application. However, due to the urgency of the application I have heard the application on an ex parte basis as is provided for by s 15(2) of the CJEA.

Background to the application

The relevant background to the application briefly stated is as follows.
On 2 April 2014 the defendant entered into a loan agreement with the plaintiff pursuant to which the plaintiff advanced to the defendant the principal sum of $440,640. The loan was secured by a mortgage over a property situated at 20 Concorde Drive in High Wycombe (property). The defendant is, and was at all material times, the registered proprietor of the property.
The defendant…

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 Secure Funding Pty Ltd v Lock

Details

AGLC: Secure Funding Pty Ltd v Lock [2022] WASC 276
Case: [2022] WASC 276
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the plaintiff, Secure Funding Pty Ltd, sought an order under the Civil Judgments Enforcement Act 2004 (WA) (CJEA) for the suspension of the enforcement of a judgment against the defendant, Mr Patrick Michael Lock. The plaintiff had obtained a default judgment for possession of a property secured by a mortgage, and a Property (Seizure and Delivery) Order was issued to permit the sheriff to take possession of the property. Mr Lock, who is self-represented, applied for a suspension of the enforcement of the judgment, citing three grounds in support of the application.

The court examined each ground put forward by Mr Lock. Firstly, Mr Lock claimed he did not receive notification of the proceedings, but the court found that he had been properly served with the necessary notices. Secondly, Mr Lock referred to an Australian Financial Complaints Authority (AFCA) investigation that found the plaintiff in breach of the loan agreement, but the court concluded that the breaches did not amount to a reasonable prospect of success in varying or setting aside the default judgment. Lastly, Mr Lock argued that he would suffer significant hardship if the suspension order was not granted, as he would be left homeless with his partner and young child. However, the court held that while the consequences would be severe, they did not constitute special circumstances warranting a suspension order.

The court held that none of Mr Lock's grounds provided a basis for concluding that special circumstances existed, and dismissed the application. The court found that the plaintiff was entitled to enforce the judgment and that Mr Lock had not established any special circumstances justifying a suspension of the enforcement of the judgment.

Orders