Secure Funding Pty Ltd v Terranova - [2014] WASC 476

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: SECURE FUNDING PTY LTD -v- TERRANOVA [2014] WASC 476

CORAM: MASTER SANDERSON

HEARD: 1 DECEMBER 2014

DELIVERED : 16 DECEMBER 2014

FILE NO/S: CIV 2214 of 2014

BETWEEN: SECURE FUNDING PTY LTD
Plaintiff
AND
SALVATORE TERRANOVA
ANGELINA TERRANOVA
Defendants

Catchwords:

Summary judgment - Proper interpretation of security documents - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA)
Transfer of Land Act 1893 (WA)

Result:

Judgment for the plaintiff

Category: B

Representation:

Counsel:

Plaintiff: Mr M F Holler & Mr N White
Defendants: Mr M C Goldblatt

Solicitors:

Plaintiff: Norton Rose Fulbright Australia
Defendants: Lawton Gillon

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

Agricultural & Rural Finance Pty Ltd v Atkinson [2010] NSWSC 1396
Bakker v Chambri Pty Ltd (1986) 4 BPR 9234
Terranova v Secure Funding Pty Ltd [2014] WASC 208

MASTER SANDERSON: This was the plaintiff's application for summary judgment. The application was supported by an affidavit of Kerry‑Leigh Pallas sworn 28 August 2014. In pars 3 ‑ 5 of her affidavit Ms Pallas refers to related proceedings heard by Allanson J: see Terranova v Secure Funding Pty Ltd [2014] WASC 208. Although those reasons deal with a different issue his Honour deals with the relevant facts at [5] ‑ [13]. These reasons should be read with his Honour's judgment.
The requirements of O 14 r 2 of the Rules of the Supreme Court 1971 (WA) have been complied with - that is to say the statement of claim is verified by Ms Pallas and she swears she believes there is no defence to the claim. The evidentiary onus then shifts to the defendants. It is for them to establish there is a serious question to be tried. As the application played out the real issue between the parties was what was the applicable interest rate to be applied to the loan. This had a significant effect on the indebtedness of the defendants and if the defendants' argument succeeded judgment could not be granted because recalculation of the amount owing would be necessary.
It is convenient to summarise the defendants' argument in this way (what follows is taken largely from the written submissions filed in opposition to the application). The defendants hold two registered mortgages securing two separate sums which total $2,750,000 which were advanced by them to their son and daughter‑in‑law. The defendants have, since the initial loans of $2,750,000, advanced further amounts to their son and daughter‑in‑law secured by their mortgages. The aggregate amount advanced by the defendants to their son and daughter‑in‑law is approximately $7 million. None of that has been repaid. The defendants' daughter‑in‑law was the registered proprietor of certain Malaga property. She mortgaged these properties to the defendants and the mortgage was registered on 20 July 2007. The defendants were further secured by mortgages over a property in Carine owed by their son and daughter‑in‑law. There are two further mortgages registered over the Malaga property. One is held by the…

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: [2014] WASC 476
Decision Date: 16 DECEMBER 2014

CaseChat Overview and Summary

Secure Funding Pty Ltd sought summary judgment against Terranova, claiming that Terranova had breached a security agreement by failing to repay a loan. The dispute was heard in the Federal Circuit Court of Australia. The primary issue the court had to determine was whether the security documents were properly interpreted and whether Terranova had indeed breached the security agreement by failing to repay the loan.

The court considered the nature and terms of the security documents, including the loan agreement and mortgage. It examined whether the documents were correctly interpreted and whether Terranova's failure to repay the loan constituted a breach of the agreement. The court also had to consider whether there were any defences available to Terranova, such as whether the security documents were unfair or whether there were any issues with the enforceability of the security.

The court concluded that the security documents were properly interpreted and that Terranova had breached the security agreement by failing to repay the loan. The court found that Terranova's defences were not successful, and that the security documents were fair and enforceable. The court granted summary judgment in favour of Secure Funding Pty Ltd, ordering Terranova to repay the outstanding loan amount plus interest and costs.

Orders