Thomas v Norfina Ltd - [2025] SASC 108

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
THOMAS v NORFINA LTD
[2025] SASC 108
Judgment of the Honourable Justice Gray (ex tempore)
25 June 2025
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT - INTERLOCUTORY ORDERS AND JUDGMENTS
The applicant alleges the learned Associate Justice erred in law by misapplying the issue of whether there was a triable issue in dispute; contending that there was fraud and unconscionability by the respondent, and that the loan broker was an agent for the respondent; and that there was a failure to transfer the mortgage.
Held: dismissing the application for leave to appeal:
1.The learned Associate Justice was correct to find that it was not reasonably arguable that the loan broker was the respondent’s agent at [43].
2.The evidence adduced by the application did not support a reasonably arguable case of special disability or disadvantage at [45].
3.There was no denial of procedural fairness, nor error in the findings concerning the allegations of misrepresentation or fraud by the respondent at [61]-[62].
4.There was no error in the rejection of the allegations of there being a failure to carry out checks during the loan approval process and a deliberate attempt by the respondent to ensure information was not received by the applicant at [65]-[67].
5.The learned Associate Justice correctly found that a change in name of the respondent did not require a transfer of the mortgage at [72].
6.The decision of the learned Associate Justice is not attended by sufficient doubt to warrant appellate reconsideration and would not result in substantial injustice to the applicant at [74].

Uniform Civil Rules 2020 (SA) r 186.1(2)(b), referred to.
McDonald v Attorney-General for the State of South Australia [2021] SASCA 57; McDonald v Attorney-General for the State of South Australia (No 2) [2021] SASCA 146; Draoui v Le [2021] SASCA 33; Harris Scarfe Ltd (in liq) v Ernst & Young (No 2) [2005] SASC 168; Commonwealth v Saadat [2019] SASCFC 124; Montesa Investments Pty Ltd v Certance CT Pty Ltd [2022] SASC 43; De Pasquale v ASCF [2021] SASC 21; Serventy v Commonwealth Bank of Australia [No.2] [2016] WASCA 223; Esanda Finance Corporation Ltd v Spense Financial Group Pty Ltd [2006] WASC 177; Perpetual Trustee Co v Burniston (No.2) [2012] WASC 383; Tonto Home Loans v Tavers [2011] NSWCA 389; Toll (FGCT) Pty Limited v Alphapharm Pty Ltd [2004] HCA 52; Stubbings v Jams 2 Pty Ltd [2022] HCA 6; Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; Ramadan v CAN 098 408 176 Pty Ltd [2023] SASCA 91; Elkofairi v Permanent Trustee Co Ltd (2002) 11 BPR 20,841, considered.

THOMAS v NORFINA LTD
[2025] SASC 108
Single Judge Appeal: Civil

GRAY J (ex tempore): This is an appeal against orders of her Honour Associate Justice Bochner delivered on 12 February 2025. The effect of those orders was to dismiss the applicant’s application to set aside an order for possession made on 2 October 2018, (the ‘possession order’), and to grant the respondent liberty to apply for a warrant of possession. Associate Justice Bochner held that it was not in the interests of justice for the possession order to be set-aside and for the matter to proceed by way of pleadings. The applicant seeks on this appeal that the orders of Associate Justice Bochner and the possession order, be set aside.
The applicant requires leave. The primary considerations for this Court on the question of leave are whether the decision sought to be impugned is attended by sufficient doubt to warrant appellate intervention, and whether substantial injustice would be done by leaving the decision unreversed.[1]
[1] See McDonald v Attorney-General for the State of South Australia [2021] SASCA 57; McDonald v Attorney-General for the State of South Australia (No 2) [2021] SASCA 146 at [11]-[12]; Draoui v Le [2021] SASCA 33 at [60]; Commonwealth v Saadat [2019] SASCFC 124 at [50]-[52]; Harris Scarfe Ltd (in liq) v Ernst & Young (No 2) [2005] SASC 168 at [4]-[11]. The Court may also consider particularly where an appeal relates to a matter of practice and procedure whether the appeal raises an issue of principle or general importance.
Background and issues in dispute
The applicant is the registered proprietor of a property known as 8 Cascabel Way, Noarlunga Downs (the ‘property’).[2] The applicant purchased the property with his former wife in April 2012.[3] Funds to purchase the property were borrowed from Bank of Western Australia (Bank West) in 2012.[4]
[2]     Certificate of Title Register - Volume 6049, Folio 111.
[3]     Respondent’s Appeal Book (RAB) at 169 [13]-[14] (Affidavit of David Thomas dated 17 October 2024 (FDN 27) (First Thomas Affidavit).
[4]     RAB at 169 [13] (First Thomas Affidavit).
When the applicant separated from his wife in November 2012, the applicant agreed to purchase his ex-wife’s interest in the property.[5] Just prior to the time required to make the payment to his ex-wife, the applicant engaged a mortgage broker to assist him to obtain a loan to refinance the property and make the required payment.[6] On or about 21 May 2013, an application for finance in the amount of $440,000 was made in the name of the applicant with the respondent.[7] The application was lodged by the applicant’s mortgage broker Mr Paley of Loan Market.
[5]     RAB at 169 [15]-[16] (First Thomas Affidavit).
[6]     RAB at 171 [38]-[40] (First Thomas Affidavit).
[7]     RAB at 188; RAB at 171 [46]-[47] (First Thomas Affidavit).
On 30 May 2013, having accepted the application for finance, the respondent dispatched the relevant loan and mortgage documentation to the applicant’s broker for execution.[8] Shortly thereafter, on 3 June 2013, the applicant accepted a written loan offer from the respondent which contained the terms of the provision of the loan to the applicant (‘credit contract’).[9] That same day the applicant executed a mortgage in favour of the respondent securing the applicant’s obligation under the credit contract.[10]
[8] RAB at 365; RAB at 791 (Affidavit of Mitchell Broad dated 29 May 2025 (Second Broad Affidavit)) (FOS Complaint).
[9] RAB at 27 [7] (Affidavit of Donnacha O’Coilean (FDN 2)); RAB at 76.
[10] RAB at 27 [5]-[6], 29 [11]; RAB at 36-40 (Exhibit DO-02’) (Affidavit of Donnacha O’Coilean (FDN 2).
Also on 3 June 2013, the applicant executed the disbursement authority and acknowledgment.[11] By that document, the applicant acknowledged that he had received:
a.The Information statement about the Credit Contract;
b.Borrower information Table and Offer of Loan;
c.Security;
d.Final Assessment; and
e.The respondent’s Credit Guide.
[11] RAB at 74.
The applicant asserts in the affidavit material filed before the learned Associate Justice, that he only saw and executed the signature pages of each of the documents referred to above and that his broker did not provide him with the whole of those documents prior to, or after, execution.[12] The affidavit material filed by the respondent indicates that upon settlement of the loan the available funds being the amount of $435,112 were used by the applicant as follows:[13]
a.to refinance the Bank West Loan over the Property in the amount of approximately $217,000;
b.to payout a personal loan with Capital Finance in the amount of approximately $26,570;
c.to payout a credit card debt owed to Bank of South Australia in the amount of approximately $12,000;
d.to payout his ex-wife in the amount of approximately $170,000; and
e.personally, in respect of the balance of the funds which was approximately $10,000.
[12] RAB at 172-173 [62]-[68] (First Thomas Affidavit).
[13] RAB at 81-82 (Affidavit of Donnacha O’Coilean (FDN 2)).
Over two years later, on 26 February 2016, the applicant made a complaint to the respondent about its alleged lending practices, and what the applicant described as “fraudulent use of a loan application form”.[14] Later in around June 2016, the applicant lodged a complaint against the respondent with the Financial Ombudsman Service (FOS)[15] raising amongst other things, his allegations of fraud against the respondent.
[14] RAB at 224-225 (First Thomas Affidavit).
[15] RAB at 389 [14] (Affidavit of Mitchell Broad 15 January 2025 (FDN 34) (First Broad Affidavit)).
The applicant indicated to the effect he had been subject to fraudulent practices.[16] The following year, in or about 15 March 2017, the FOS determined the complaint in the respondent’s favour finding amongst other things that there had been no maladministration in relation to the original loan[17] and that the applicant’s broker was not as the applicant had asserted as an agent of the respondent.[18] On or about 18 April 2017, the respondent was advised by the FOS that the applicant had accepted the FOS determination on 13 April 2017.[19] At around the time of first raising the allegations of fraudulent use of a loan application form, the applicant had lost his employment and ceased making any repayments on the loan. The last repayment was made on 17 February 2016.[20]
[16] RAB at 389 [14] (First Broad Affidavit).
[17] RAB at 389 [15] (First Broad Affidavit).
[18] RAB at 779 (Second Broad Affidavit) (FOS Determination); RAB at 787 (Second Broad Affidavit) The FOS Recommendation also found that the respondent should have acted differently when Mr Thomas expressed financial hardship.
[19] RAB at 389 [16] (First Broad Affidavit); See also RAB at 570-571; RAB at 798 (Second Broad Affidavit) Letter from the applicant to FOS stating, “I will gladly accept the FOC recommendation…”. The applicant disputes on this appeal the meaning of that communication.
[20] RAB at 174 [80].
The respondent commenced the mortgage possession proceedings against the applicant on 30 April 2018 (‘possession proceedings’).[21] The basis of that application for possession was that the applicant was in default of the terms of the credit contract and the mortgage in that he had failed to make the repayments to the respondent.[22]
[21] RAB at 21-22.
[22] RAB at 24.
On 2 October 2018, Judge Roder (as he then was) made an order for possession in favour of the respondent.[23] Those orders were subsequently served on the applicant in compliance with a presumptive service order that was made on 13 March 2019.[24]
[23] RAB at 99.
[24] RAB at 389 [13].
There was then a significant period of time between 2019 and 2024 where the respondent did not take steps to enforce the possession order. The respondent submits that the reasons for this was as follows:[25]
a.The respondent was negotiating an offer from the applicant to purchase the property;
b.The respondent was allowing time for the applicant to pursue the builder of the property for construction defects;
c.COVID-19 effects meant that during the period of March 2020 to July 2021 there was a moratorium on enforcement action;
d.There were ongoing negotiations with the applicant; and
e.The respondent was awaiting the outcome of the District Court proceedings against the builder.
[25] RAB at 744-745 [16]-[16.9] (Affidavit of Stephanie Campbell dated 2 October 2024 (FDN 21)).
The respondent then on 2 October 2024, obtained an order from the Court extending the time within which it could enforce the possession order against the applicant.[26] On 10 October 2024, the respondent filed a notice of intention to apply for a warrant of possession in accordance with Uniform Civil Rules 2020 (SA) r 204.3.[27] On 17 October 2024, the applicant lodged a notice of objection to the issue of a warrant of possession[28] together with an affidavit in support.[29]
[26] RAB at 764 (Record of Outcome dated 2 October 2024).
[27] RAB at 143.
[28] RAB at 145.
[29] RAB at 166.
On 6 November 2024, at the hearing of the respondent’s application for the issue of a warrant for possession, the applicant made an oral application to have the order for possession set aside.[30] The matter was timetabled for the filing of affidavit material, responding submissions and listed for a hearing on 12 February 2025. The applicant filed affidavits in support of the application as did the respondent and the applicant also filed a further affidavit in reply.[31] Following argument in relation to the application to set aside the possession order on 12 February 2025, Associate Justice Bochner dismissed the application to set aside the order and granted liberty for the respondent to obtain a warrant of possession for the property.[32]
[30] RAB at 101 (Record of Outcome dated 6 November 2024); RAB at 104 Transcript dated 6 November 2024 (TT) at 2, lines 33-37.
[31] FDN 32, 34 and 35 in SCCIV-18-459.
[32] RAB at 110.
The appeal
The applicant seeks leave to appeal on four grounds. Firstly, the applicant alleges that the learned Associate Justice erred in law by misapplying the issue of whether there was a “triable issue in dispute.”
Secondly, the applicant contends that the learned Associate Justice erred by accepting the submission on behalf of the respondent that the applicant had consented to the loan application.
Third, the applicant contends that the learned Associate Justice erred in finding that Mr Payley was not Suncorp’s agent.
Fourth, the applicant contends that the learned Associate Justice failed to address whether Suncorp holds enforceable security post-ANZ acquisition, and that is a triable issue as there was no transfer evidence.
The applicant requires leave to pursue this appeal. The respondent submits that the Associate Justice’s decision is not attended by sufficient doubt to warrant appellate reconsideration and if allowed to stand, would not result in substantial injustice to the applicant and as such there is no utility in the matter proceeding by way of pleadings.[33] The respondent submits that this is not a case in which leave to appeal should be granted considering the lack of merits in the grounds of appeal.
[33] Harris Scarfe Ltd (In Liq) v Ernst & Young (No 2) [2005] SASC 168 at [4]-[11] (Bleby J); Commonwealth v Saadat [2019] SASCFC 124 at [50]-[52] (Kourakis CJ, with whom Peek and Nicholson JJ agreed); Draoui v Le [2021] SASCA 33 at [60] (Doyle JA, Lovell and Livesey JJA); McDonald v Attorney-General for the State of South Australia [2021] SASCA 57 at [12] (Kelly P, Lovell and Doyle JJA).
Consideration in respect of the merits of the grounds of appeal
I propose to address the merits of the grounds of appeal and the question of leave in respect of these grounds. I have considered the detail of the submissions advanced by both parties in respect of each of the grounds. I will address the central contentions in these reasons.
Ground One
Ground one alleges that the learned Associate Justice erred by misapplying the “triable issue in dispute” test. The applicant asserts that the learned Associate Justice:[34]
a.Erred in requiring conclusive proof of fraud, agency and unconscionability rather than assessing whether those complaints were arguable; and
b.Further erred in dismissing the evidence led by the applicant as “mere speculation”.
[34] Notice of appeal (FDN 1); RAB at 5.
There are five central aspects to this ground which the applicant advances. First, he states that the applicant’s evidence raises triable issues of signature splicing, and in support of this ground the applicant relies upon a report produced indicating that the signature page of the relevant loan application differed from other aspects of the document.[35] In oral submissions, the applicant indicated that it was Mr Payley that engaged in signature splicing and that was the primary allegation.[36]
[35] Appellant’s Appeal Book (AAB) at 12 [101]-[102] (First Thomas Affidavit); see also, Exhibit DT-05.
[36] Appeal Transcript (AT) at 42, line 27.
Secondly, the applicant relies upon assertions that he advances as to Mr Payley’s undue influence in relation to him and misrepresentations that the applicant claims Mr Payley made about the documents that the applicant executed.
Thirdly, the applicant claims that Mr Payley attached a falsified rental appraisal to the unauthorised loan application.
Fourthly, the applicant states that he did not accept the findings of the Financial Ombudsman Service.
Fifthly, the applicant relies upon an email communication between Mr Payley and an employee of the respondent which states “I pity da fool”.[37]
[37] RAB at 326 (Second Thomas Affidavit).
The error that the applicant seeks to identify is that the applicant claims that the Associate Justice did not consider these matters in dismissing the applicant’s claim as “speculative” and the Associate Justice is said by the applicant to have ignored the above issues.
In response to these matters, the respondent states that in order to proceed by way of pleadings the applicant must establish a reasonably arguable case that the respondent engaged in conduct fraud or unconscionable conduct in this instance, in entering into the loan and mortgage transaction.[38]
[38] Montesa Investments Pty Ltd v Certance CT Pty Ltd [2022] SASC 43.
The respondent further asserts that the applicant has received the benefit of the loan, and that the applicant is required to credit the respondent to the extent of the earlier mortgage paid out by way of the loan and the debts repaid as a result of the loan.[39]
[39] Respondent’s Written Submissions (FDN 29) at [37].
The respondent asserts that in determining whether to set aside the possession order, her Honour was required to consider whether it was in the interest of justice to do so.[40] This is the test her Honour applied.[41] Her Honour:[42]
a.considered all of the evidence in the matter “very carefully” and listened to the submissions of both parties;
b.determined that the affidavit material relied upon by the applicant did not demonstrate a triable issue of substance;
c.considered the allegations made by the applicant in light of the evidence contained in the affidavits filed, and determined that “Nothing on the affidavit material … raises these allegations above mere speculation”;
d.noted that the allegations raised were investigated in full by the Financial Ombudsman Service (FOS) in 2017 and those findings were persuasive; and
e.found that in the absence of any new evidence, she saw “no value or indeed no justice in referring this matter further into the trial list.”
[40] Uniform Civil Rules 2020 (SA) r 186.1(2)(b).
[41] RAB at 141 (Ex tempore Ruling of Associate Justice Bochner dated 12 February 2025).
[42] Respondent’s Written Submissions (FDN 29) at [55].
The respondent submits that there is no evidence that the respondent had any knowledge of the conduct alleged against Mr Paley. There is no evidence that the respondent had any contact with the broker which would be sufficient to give the respondent knowledge of any fraudulent conduct of Mr Payley, even if there was such conduct. Whilst the respondent accepts that the email communication stating “I pity da fool” is unfortunate and unprofessional, it does not evidence any fraud or unconscionability. The applicant is said by the respondent to simply be drawing inferences leading to supposition.
In respect of any argument by which the applicant sought to rely upon evidence that he was at a special disadvantage or there was unconscionable conduct involved, the respondent points to the only evidence provided by the applicant as not establishing any special disability or disadvantage. Further, it is submitted that the applicant’s evidence did not establish entry into the transactions by reason of unconscionable conduct.[43]
[43] Respondent’s Written Submissions (FDN 29) at [67].

The reasons of the learned Associate Justice are brief, however the brevity of reasons does not disclose the errors of which the applicant complains in relation to this ground. The learned Associate Justice was entitled to consider the findings of the Financial Ombudsman Service (FOS) and to note that they were persuasive. There is no error in this. There is no reason to imply that the learned Associate Justice did not consider the submission that was advanced by the applicant concerning the FOS findings.[44] The reasons of the learned Associate Justice do not state that reliance was placed on whether or not the FOS findings were accepted by the applicant. Her Honour noted that she was not bound by those findings.
[44] See further, Respondent’s Written Submissions (FDN 37) in SCCIV-18-459; RAB at 154.
The learned Associate Justice did not say that conclusive evidence of proof of fraud, agency and unconscionability were required. Rather, the Associate Justice held that the affidavit material did not demonstrate a triable issue of substance.
The question of whether there is a “triable issue” calls for a consideration of whether the applicant can establish a reasonably arguable case.[45] Considering the affidavit material of the applicant, it was open to the learned Associate Justice to find that the applicant had not established a reasonably arguable case.
[45] De Pasquale v ASCF [2021] SASC 21 (Livesey J).
The finding that the learned Associate Justice referred to as “mere speculation” concerned the allegations against both the respondent and Mr Payley of matters such as the fraudulent concealment of legal notices, and the fraudulent concealment of the terms of the contract.
Many of the matters that the applicant seeks to advance in respect of this ground to support that there was a reasonably arguable case are dependent upon findings that the respondent was responsible in some way for the alleged conduct of Mr Paley. Mr Payley was the applicant’s broker. The allegations against Mr Payley by the applicant included the following:
a.submitting an unauthorised and unsigned loan application which contained fraudulent information;
b.influencing the applicant to fill out a second, authorised loan application;
c.taking the applicant’s legitimate signature from the authorised loan application and “spliced” it and inserted it into the unauthorised loan application following which the broker submitted the “spliced” application to the respondent for assessment;
d.concealing the mortgage/ credit contract documents and legal notices from the applicant so he didn’t understand the true nature of the transaction he was entering in to;
e.influencing, unduly, the applicant to enter into the relevant documents;
f.misrepresenting the effect of the documents that the applicant “was executing”;
g.falsifying a rental appraisal;
h.falsifying the Applicant’s income;
i.under-estimating child support commitments and not providing details of all financial commitments of the applicant to the respondent; and
j.sending, or replying to, a communication to an employee of the respondent with the subject line “I pity da fool”.
Allegations of fraud and unconscionability are serious allegations and are not to be made lightly. Whilst there was some evidence adduced by the applicant, which if accepted at trial would have raised concerns about matters such as the signature on the loan application ,[46] the difficulty for the applicant is that there was no evidence that the respondent had any knowledge of the conduct alleged against Mr Payley if such conduct occurred.[47] Further, the applicant acknowledges placing his signature on the loan agreement, the mortgage and the acknowledgment document.
[46] AAB at 64-75.
[47] AT at 67.
The applicant’s case in respect of fraud is that the fraud was perpetuated by Mr Payley. The starting point in considering the question of agency in these circumstances is that a finance broker is generally the agent of the borrower, rather than the lender.[48] Further, the agreement between the respondent and Mr Payley which was in evidence before the learned Associate Justice amongst other things provided:[49]
a.Preferred Loan Introducers, directly or through Brokers, act as agent for potential borrowers in order to introduce potential borrowers to credit providers to obtain finance (Recital B);
b.Loan Market is liable for the acts or omissions of the Brokers and Representatives of Brokers (cl 5.11);
c.Loan Market must not (and must ensure each Broker does not) make any representation, warranty or promise on behalf of Suncorp (clause 6.1(c)) nor represent that Loan Market or the Broker is acting as agent for Suncorp or is authorised to make representations or enter into contracts on behalf of Suncorp (cl 6.1(d));
d.Loan Market is Suncorp’s agent only for the purpose of identifying and verifying the identity of potential borrowers under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (‘AML/CTF Act’) cl 7.11.
[48] Serventy v Commonwealth Bank of Australia (No.2) [2016] WASCA 223 at [39]; Esanda Finance Corporation Ltd v Spense Financial Group Pty Ltd [2006] WASC 177 at [54], [61]-[64]; Perpetual Trustee Co v Burniston(No.2) [2012] WASC 383 at [245].
[49] RAB at 286.
The Introducer Agreement did not require Mr Payley or Loan Market to send any particular loan application to the respondent. The broker was free to act in the borrower’s interest (and its own interest) when deciding whether and where to send a loan application.
The substance of the relationship between the broker and the respondent on the material before the Associate Justice indicated that the broker completes the loan application form and provides the information to the respondent in the manner required and receives a fee or commission for doing so.[50] This in and of itself does not establish that the broker is the agent of the respondent.[51]
[50] RAB at 286 cl 8.
[51] Serventy v Commonwealth Bank of Australia (No 2) [2016] WASCA 223 at [59]; see, by analogy, Esanda Finance v Spence Financial Group at [65]; Perpetual Trustee Co v Burniston(No.2) [2012] WASC 383 at [246]-[248]; TontoHome Loans v Tavers [2011] NSWCA 389 at [191]-[193].
There was no cogent evidence that the applicant could point to which indicated that the respondent ever held Mr Payley out as its agent; and there was no evidence referred to of any conduct by Mr Payley by which he held himself out to the applicant as being the agent of the respondent.
It follows, that to the extent that the applicant sought to establish a reasonably arguable case against the respondent and Mr Payley based upon the conduct of Mr Payley, the applicant has not demonstrated any error in the finding of learned Associate Justice that these allegations did not rise above mere speculation. The applicant has not been able to point to any evidence to support what is a suspicion that Mr Payley was the respondent’s agent and there was no evidence adduced to raise this issue as being a triable matter. Whilst the email upon which the applicant relies from Mr Payley is not worded carefully, it does not support the allegation of fraud being a triable issue. Further, by signing legal documents, Mr Thomas represented to the respondent that he either read and approved the contents of the documents or was willing to take the chance of being bound by those contents whatever they may be.[52]
[52] Toll (FGCT) Pty Limited v Alphapharm Pty Ltd [2004] HCA 52.
In respect of the allegation of unconscionability raised in this ground the matter relied upon by the applicant in this respect concerned:
the breakdown of his marriage was “extremely stressful” and an “emotionally abstract experience” and that in his opinion he was “in no means in a position to take care of my own best interests”;[53]
[53] RAB at 170 [26] (First Thomas Affidavit).
he had agreed to pay his ex-wife $170,000 in their property settlement, based on a preliminary approval for a loan from Westpac which had fallen through by 20 April 2013,[54] and his wife was “vocal” about enforcing her Court orders;[55] and
[54] RAB at 170 [31]-[38] (First Thomas Affidavit).
[55] RAB at 171 [44] (First Thomas Affidavit).
he was asked to sign the Credit Contract, Mortgage and Acknowledgement at short notice because the documents were ready for execution.[56]
[56] RAB at 172 [57]-[66].
The evidence adduced by the applicant does not support a reasonably arguable case of special disability or disadvantage.[57] The onus was upon the applicant to do so, and he has not adduced evidence to establish a reasonably arguable case of special disadvantage and unconscionable conduct.[58]
[57] Stubbings v Jams 2 Pty Ltd [2022] HCA 6 at [39] (per Kiefel CJ, Keane and Gleeson JJ); Montesa Investments Pty Ltd v Certance CT Pty Ltd [2022] SASC 43 at [79] citing Commercial Bank of Australia Ltd v Amadio [1983] HCA 14.
[58] Montesa Investments Pty Ltd v Certane CT Pty Ltd [2022] SASC 43 at [111] (Blue J).
It follows that I consider that the learned Associate Justice did not err by misapplying the triable issue in dispute test, nor has the applicant established any aspect of this ground of appeal which would warrant appellant intervention.
Ground Two
In respect of Ground two the applicant submits that the learned Associate Justice erred by accepting the submission of the respondent’s counsel that the applicant consented to the fraudulent loan application. The applicant asserts that the submissions of the respondent’s counsel were a misrepresentation.[59]
[59] Apellant’s Written Submissions (FDN 4) at [13].
The applicant further submits that the evidence demonstrates that the loan application submitted on 21 May 2013 at 11:15 am was unsigned and unauthorised by the applicant and contained fraudulent information. The applicant states on appeal, that the loan application was later resubmitted at 5:40 pm with the signature page spliced into it from a different document which the applicant had filled in with Mr Payley (which contained true and correct information),[60] and that the same colour pen was used to sign these documents such that any claim that the applicant consented to false data including the incorrect address is contradicted.[61]
[60] Notice of Objection (FDN 27) on SCCIV-18-459 at [87]-[104].
[61] Notice of Appeal Ground 2(a).
The respondent submits that the respondent’s counsel did not indicate that the applicant consented to the fraudulent loan application.[62]
[62] RAB at 135.
The respondent submits that in order to proceed by way of pleadings the mortgagor must establish a reasonably arguable case that the respondent engaged in conduct (fraud or unconscionable conduct in this instance) in entering into the loan and mortgage transaction.[63]
[63] Montesa Investments Pty Ltd v Certane CT Pty Ltd [2022] SASC 43 at [83] (Blue J).
The respondent also submits that the evidence adduced by the applicant which is said to be fraudulent due to the alleged splicing of the applicant’s signature, and other matters related to the loan application and not to the loan agreement, the mortgage and the acknowledgment.
The respondent submits where a person is not a volunteer, and has received the benefit of a loan, they are required to give credit to the extent of the earlier mortgage and debts paid out as a result of the loan; otherwise, it would be an unwarranted benefit or windfall.[64]
[64] Ramadan v CAN 098 408 176 Pty Ltd [2023] SASCA 91 at [153] referring to the decision of Elkofairi v Permanent Trustee Co Ltd (2002) 11 BPR 20,841 at [98]-[106].
The respondent further submits signing a legal document known and intended to affect legal relations ordinarily conveys a representation to a reasonable reader of that document that the person who signs has either has read and approved the contents of the document or is willing to take the chance of being bound by those contents, whatever they might be.[65] The respondent asserts that the applicant in signing the loan documentation made a representation that he had read and approved the contents of the document, or that he was willing to be bound by the content of those documents whatever they might be.[66] As a consequence, Mr Thomas cannot escape the consequences of what he has signed on the respondent’s submissions.
[65] Toll (FGCT) Pty Limited v Alphapharm Pty Ltd [2004] HCA 52 at [45].
[66] Ibid; see also Respondent’s Written Submissions (FDN 29) at [38].
On appeal in oral argument, the respondent submitted that even if there was fraud by Mr Payley (which the respondent submitted, the evidence does not establish) the applicant would still be bound to account for the money he received from the respondent.
Further, the respondent states that Mr Payley’s conduct of which the applicant complains relates to the loan application. The applicant still signed the mortgage document.
The third limb of the respondent’s argument is that even if Mr Payley engaged in fraudulent conduct (which is not accepted by the respondent) it would be outside the scope of any agency agreement.
Fourthly, Mr Payley on any reasonable view would be an agent of the borrower, in this case, Mr Thomas, and would not be an agent of the lender.
Further the respondent contends that the applicant was accorded procedural fairness in the proceedings before the learned Associate Justice.[67]
[67] Respondent’s Written Submissions (FDN 29) at [81]; RAB at 123 (TT at 12, lines 7-8); RAB at 137 (TT at 26, line 26).
I have addressed above the manner in which it was open to the learned Associate Justice to find that there was no reasonably arguable case or triable issue in respect of the allegations of fraud being attributable to the respondent.
I accept the respondent’s submission that the transcript does not identify the submission being made by the respondent’s counsel that the applicant seeks to attribute to the respondent.[68] I also find that the learned Associate Justice accorded the applicant procedural fairness. Her Honour:
a.gave the applicant an opportunity to put as much evidence before her as he thought he needed to cover to get his position across;[69]
b.gave the applicant an opportunity to respond to the respondent’s counsel who appeared before the learned Associate Justice, Mr Belperio once he had finished his submissions;[70] and
c.listened to submissions from both Mr Belperio and the applicant and considered those submissions prior to making her Honour’s ruling [71]
[68] RAB at 136-137 (TT at 25-26).
[69] RAB at 123 (TT at 12, lines 7-8).
[70] RAB at 137 (TT at 26, line 26).
[71] RAB at 142.
In respect of the evidence raised by the applicant in relation to the alleged splicing of the loan application and even if it is arguable that this was done without the applicant’s knowledge it remains the case that the applicant would still be bound to account for the moneys he received from the respondent.[72] Further, this allegation related only to the loan application not to the loan agreement and mortgage documents.
[72] Ramadan v ACN 098 408 176 Pty Ltd [2023] SASCA 91 at [152]-[155].
I find that the applicant has not established in respect of this ground that the decision sought to be impugned is attended by sufficient doubt to warrant appellate intervention and substantial injustice would be done by leaving the decision unreserved.
Ground Three
In respect of Ground three the applicant states that the learned Associate Justice erred in finding Mr Payley was not Suncorp’s agent, ignoring evidence of Suncorp’s notice,[73] Mr Payley’s early system access,[74] and unauthorised applications, raising a triable issue.[75]
[73] Notice of appeal Ground 3; AAB at 82; AAB at 147 Exhibit DT-14 (Second Thomas Affidavit).
[74] Notice of appeal Ground 3; AAB at [104] (First Thomas Affidavit).
[75] Tonto Home Loans v Tavers [2011] NSWCA 389.
The respondent submits that the documents relied upon by the applicant in support of these submissions indicate that when the application for the loan was first submitted by Mr Payley, the application did fail due to inadequate information being provided. The respondent submitted that this indicated that the respondent was diligent in assessing the loan application and that what was required was further information. It was submitted that it was only when the further information was provided that approval was granted.[76]
[76] RAB at 360-367.
To the extent that the applicant raised in this ground and in respect of the argument made in oral submissions that there was a deliberate attempt by the respondent to ensure that information was not received by Mr Thomas and that the respondent was in some way derelict in its duties towards Mr Thomas by sending notices to what Mr Thomas referred to as his former address, the documentary evidence indicates that the address to which the notices in question were sent was the address that Mr Thomas provided on his loan application which was the address also shown on his driver’s licence. The driver’s licence was provided to the respondent with the address Mr Thomas now says was inaccurate.[77]
[77] RAB at 544.
The aspect of this ground concerning agency is addressed in respect of Ground one above and for the reasons outlined above I would dismiss the challenges to the findings of the learned Associate Justice on the question of agency. I accept the respondent’s submissions that the evidence before the learned Associate Justice demonstrated that checks were carried out by the respondent in assessing the loan application, and I find that there was no deliberate attempt by the respondent to send notices to an incorrect address.
It follows that there is no appealable error identified by the applicant in the finding of the learned Associate Justice relevant to this ground and the decision is not attendant with sufficient doubt to warrant appellate intervention.
Ground Four
The applicant alleges in Ground four that the Associate Justice failed to address whether Suncorp holds enforceable security post-ANZ acquisition, a triable issue given no transfer evidence, risking injustice.[78]
[78] Notice of appeal Ground 4; AAB at 236 [16] (d-e) (Affidavit of David Thomas dated 28 January 2025) (Third Thomas Affidavit); AAB at 225 [6]-[8] (First Broad Affidavit).
In response to this ground the respondent submits that no oral submissions were made to Associate Justice Bochner on this matter. It was said that the applicants written submissions filed in support of his application to set aside the possession order makes no reference to this argument.
The applicant in his affidavit sworn 28 January 2025[79] clarifies that the complaint advanced in respect of this ground is that there was no transfer of the mortgage from ANZ to Suncorp, which was the complaint made in the affidavit which was before the learned Associate Justice. In that affidavit, the applicant, inter alia, states:
a. Copies of documents are not evidence of possession, holder status or ownership of these alleged securities. I further say with reference to paragraph 12 above, Mr Broad has provided evidence of the change of name and ownership of Suncorp Bank, however there is no evidence that shows the transfer of these alleged securities from SUNCORP GROUP LIMITED to AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED and is my sincere knowledge and belief, that no such transfer document exists.
b. With reference to paragraph 16(d) above until such time as the Applicant can provide evidence of being in possession of, is the holder in due course or has ownership of the alleged securities and/or instruments the Court cannot assume that it does and I say further that in the event of a third party having holder in due course status of these alleged securities it would be unjust for me to face two claimants without evidence to identify the true owner.
[79] RAB at 734.

The respondent accepts that the matter was raised in the affidavit material and says in any event, that the mortgagee on the title of the property is the respondent on this appeal, and there has been no assignment or otherwise of the mortgage secured against the property.[80]
[80] RAB at 34 (certificate of title); RAB at 41 (mortgage).
There is no issue advanced by this ground which justifies appellate intervention. As a matter of law there is no requirement for there to be a transfer of the mortgage when the mortgagee on the title of the property is the respondent in this appeal. The entities are the same, with the same ACN number, all that had changed is the name. The evidence upon which the respondent relied demonstrates that what was affected was a name change from Suncorp to Norfina.[81] The change in the legal name of the respondent did not require a transfer of the mortgage.
[81] RAB at 393.
It follows I consider there is no merit in this ground of the appeal.
Conclusion
For the reason identified above, I would not grant leave to appeal. The learned Associate Justice’s decision is not attended by sufficient doubt to warrant appellate reconsideration, and if allowed to stand it would not result in substantial injustice to the applicant. The applicant has not demonstrated an issue of principle or general importance arising from the grounds identified on this appeal. There was and is no utility in this matter proceeding by way of pleadings.
The decision of the learned Associate Justice correctly found that it was not in the interests of justice for the possession order to be set aside and for the matter to proceed by way of pleadings. The applicant’s evidence indicates that he has failed to make loan repayments to the respondent since early 2016 and he is not in a position to repay the moneys borrowed from the respondent. It follows that the property will need to be sold and the learned Associate Justice was correct in granting leave to have a warrant issued.
I will hear the parties as to costs.