St George Bank a Division of Westpac Banking Corporation v NADIA Morgan also known as NADIA NIKOLOFF

[2020] WASC 342

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   ST GEORGE BANK - A DIVISION OF WESTPAC BANKING CORPORATION -v- NADIA MORGAN also known as NADIA NIKOLOFF [2020] WASC 342

CORAM:   MASTER SANDERSON

HEARD:   3 SEPTEMBER 2020

DELIVERED          :   3 SEPTEMBER 2020

PUBLISHED           :   8 OCTOBER 2020

FILE NO/S:   CIV 2159 of 2017

BETWEEN:   ST GEORGE BANK - A DIVISION OF WESTPAC BANKING CORPORATION

Applicant

AND

NADIA MORGAN also known as NADIA NIKOLOFF

Defendant

Catchwords:

Mortgagee action - Application to set aside summary judgment - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Applicant	:	J Huntsman
Defendant	:	In Person

Solicitors:

Applicant	:	Lavan
Defendant	:	In Person

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

Nil

MASTER SANDERSON:

1. This was the defendant's application to set aside summary judgment.  The writ with a statement of claim was issued on 12  July  2017.  The defendant entered an appearance on 17 October 2017 and filed a defence on 12 March 2018.  The applicant brought an application for summary judgment on 6 February 2018.  The application for summary judgment was well out of time and in the summons, the applicant sought leave to bring the application.  I granted leave and entered judgment on 21 August 2020.

2. In support of the application, the applicant relied on an affidavit of Emma Louise Kelly sworn 6 August 2018.  That affidavit explains the reason for the delay in bringing the application.  The claim itself is based upon a mortgage.  The applicant sought possession of a property in Queens Park owned by the defendant.  The delay in bringing the application is explained by saying the applicant allowed the defendant time to prepare her defence and explained why the obligations under the mortgage had not been met.

3. In support of the application the defendant has filed ten affidavits.  They have been filed between 5 September 2018 and 27 August 2020.  The defendant also filed a summons on 6 July 2020.  For the purpose of these reasons, I will treat that summons as being the defendant's application to set aside summary judgment.

4. It is somewhat difficult to ascertain from the affidavit material filed by the defendant the basis upon which she makes the application.  Perhaps the clearest statement of the defendant's position is found in the defence filed on 12 March 2018.  The defence raises a number of matters.  First, it is said the loan agreement is not valid.  The defendant says the applicant did not actually loan its own money or assets, but rather funds it may have 'borrowed from another institution'.  The defence goes on (at par 5):

   However St George merely monetarised the loan instrument creating credit on account, through bookkeeping entries that it used to fund the loan.  This is an exchange not a loan.  I did not have full disclosure that I was the source of the funds.

5. In support of the summary judgment application the applicant has filed a number of affidavits.  In particular there is an affidavit of  Steven  Grant Reece affirmed 2 July 2018 and an affidavit of Ian  Brent‑White sworn 20 November 2017.  These affidavits provide all relevant documentation.  Copies of the loan agreement and mortgage are provided as are copies of the relevant default notices.  The fact is, the defendant entered into a loan agreement with St George Bank.  The present applicant is the successor in title to St George Bank.  How the applicant (or its predecessor) sourced funds is of no consequence; it loaned funds to the defendant under certain terms and conditions.  The defendant breached those terms and conditions and she is now liable to repay the applicant.  The loan was secured by a mortgage and, on the face of it at least, the applicant is entitled to possession of the property securing the loan.

6. The second matter raised by the defence relates to the validity of the Loan Agreement.  The defence puts the position this way (at par 7):

   [T]here is the problem of Securitisation; where the Loan Agreement is bundled up with other mortgages and sold on.  So we have no idea who the real owners and interested parties are.  The Bank neglects to tell us it has sold the debt; and that they have been hired by the Trust as the servicer of the loan.

7. Just what this means is not entirely clear.  There is nothing to suggest the Loan Agreement entered into between the applicant and the defendant is in any way invalid.  It is signed by the defendant - that is not anywhere in the defence or in the affidavit material denied.

8. The third ground relied upon by the defendant relates to interest rates.  As I understand her complaint, interest rates were falling at the time default notices were issued but the applicant did not reflect both the falling interest rates and deteriorating economic conditions in demanding repayment of the loan.  This does not provide any basis for defending the action.  References to the Banking Act 1959 (Cth), the Australian Prudential Regulation Authority Act 1993 (Cth) and the Reserve Bank Act 1959 (Cth) do not in any way advance the defendant's case.

9. These three points, as supplemented by the evidence of the defendant in various affidavits, appear to be the basis upon which she seeks leave to defend the applicant's claim. I am not satisfied there is any substance in any of these claims by the defendant. The applicant has satisfied the requirements of O 14 of the Rules of the Supreme Court 1971 (WA) and was entitled to judgment. Accordingly, the defendant's application to set aside default judgment is dismissed. The defendant should pay the costs of the application, including reserved costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CB
Associate to Master Sanderson

8 OCTOBER 2020