Tobin (Dandie) v Xplore Capital Ltd
[2016] WASC 360
•8 NOVEMBER 2016
TOBIN (DANDIE) -v- XPLORE CAPITAL LTD [2016] WASC 360
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 360 | |
| Case No: | CIV:2079/2016 | 19 OCTOBER 2016 | |
| Coram: | MASTER SANDERSON | 8/11/16 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Summary judgment ordered | ||
| B | |||
| PDF Version |
| Parties: | TRACEY ANN TOBIN (DANDIE) XPLORE CAPITAL LTD PERPETUAL TRUSTEES VICTORIA LTD TRACEY ANN DANDIE GREGG JAMES DANDIE |
Catchwords: | Practice and procedure Applications for summary judgment Turns on own facts |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
XPLORE CAPITAL LTD
First Defendant
PERPETUAL TRUSTEES VICTORIA LTD
Second Defendant
- Plaintiff
AND
TRACEY ANN DANDIE
First-named Defendant
GREGG JAMES DANDIE
Second-named Defendant
Catchwords:
Practice and procedure - Applications for summary judgment - Turns on own facts
Legislation:
Nil
Result:
Summary judgment ordered
Category: B
Representation:
CIV 2079 of 2016
Counsel:
Plaintiff : In person
First Defendant : Mr H M O'Sullivan
Second Defendant : Mr J R Shepherd
Solicitors:
Plaintiff : In person
First Defendant : SRB Legal
Second Defendant : Jackson McDonald
CIV 2317 of 2016
Counsel:
Plaintiff : Mr J R Shepherd
First-named Defendant : In person
Second-named Defendant : No appearance
Solicitors:
Plaintiff : Jackson McDonald
First-named Defendant : In person
Second-named Defendant : No appearance
Case(s) referred to in judgment(s):
Nil
1 MASTER SANDERSON: In each of these two actions there was a summary judgment application. The first application in time is Ms Dandie's action against Xplore Capital Ltd and Perpetual Trustees Victoria Ltd. In that action the defendants seek an extension of time within which to bring a summary judgment application against the plaintiff. The second action is an action by Perpetual Trustees Victoria Ltd against Ms Dandie. In that action the plaintiff seeks summary judgment against the defendant. Although there are two separate actions they really relate to the one loan transaction. If summary judgment is ordered in favour of the plaintiff in CIV 2317 of 2016 then the action in CIV 2079 of 2016 must fall away.
2 In both matters Ms Dandie was self-represented. Ms Dandie has filed various affidavits in both matters and submissions in both matters which explore the common issues. Without attempting to confine the affidavits and submissions to a particular matter I have taken into account in both actions everything Ms Dandie has filed. It is convenient to deal first with the plaintiff's application for summary judgment in CIV 2317 of 2016.
3 The statement of claim is very simple. It alleges Ms Dandie is the registered proprietor of property in Dianella. On 29 June 2005 she entered into a loan agreement with the plaintiff. Allied with the loan agreement was a mortgage. The plaintiff alleges money was lent and that as at 20 April 2016 the defendant was in default under the loan in an amount of $7,495.51. It is alleged despite demand the default was not rectified. Pursuant to the loan agreement the plaintiff demanded repayment of the loan in full. The defendant did not make repayment and the plaintiff seeks judgment in the amount of the loan plus possession of the subject property.
4 It is clear the plaintiff's pleaded case does not cover precisely the arrangements between the plaintiff and the defendant. It is the case that the plaintiff and the defendant did enter into the loan agreement as alleged on 29 June 2005. However the parties subsequently agreed that the loan would become an interest only facility as against a principle and interest facility. On 4 August 2005 the defendant's accountant, Anthony Miller, wrote to Xplore Capital Ltd requesting the facility be changed. A copy of that letter appears as an attachment to the affidavit of the defendant sworn 19 September 2016 and filed in CIV 2079 of 2016. The plaintiff agreed to make the change in accordance with the defendant's wishes. The position is explained in a letter from Folio Mortgage & Finance to the defendant dated 14 March 2016. A copy of that letter also appears as an annexure to Ms Dandie's affidavit of 19 September 2016. According to that letter the maximum term for a line of credit facility was 10 years. Accordingly, as of 16 September 2015 the loan reverted to principle and interest. It is not entirely clear that when the defendant made the request to alter the finance facility to a line of credit she was aware that this change to principle and interest would occur in September 2015.
5 All of this raises as an initial question whether or not the claim is pleaded with sufficient particularity to allow a summary judgment application to be entertained. On balance I am satisfied the application should proceed. I have reached that conclusion for two reasons. First, the material facts in this case are the lending of the money by the plaintiff to the defendant, the event of default, the failure to rectify that default, and the failure to repay the money lent. It would have been preferable had the plaintiff pleaded the revised arrangement - particularly as the defendant is unrepresented. In the end the statement of claim provides the defendant with sufficient information to allow her to know the case she has to meet.
6 That first point feeds into the second point. Were it the case that any of the matters raised by the defendant would stand in the way of a revised application for summary judgment then there would have been good reason for dismissing the application. As it stands the plaintiff could simply amend the statement of claim and apply for summary judgment on the amended pleading. True it is the plaintiff would have to obtain leave to make the second application. Leave may not be granted. Here, where it is clear there is no defence, it really is in no one's interest to prolong an action where the outcome is inevitable. That being so I determined this application should proceed.
7 The defendant did raise a number of matters which she referred to as 'the issues'. The issues were 14 in number and I will deal briefly with each of them.
8 By issue 1 Ms Dandie alleges she was denied permission by Mr Miller to read the documents and seek legal advice prior to signing. As Mr Miller was the defendant's accountant and her agent it is difficult to see how any action by Mr Miller could affect the defendant's position. Furthermore the loan offer included the following provision:
I/we have each received a copy of this Offer, the Security documents and the Terms and Conditions. I/we acknowledge that the Lender has recommended that I/we obtain independent legal and financial advice about this Offer and that I/we have had the opportunity to obtain such advice. I/we agree to the terms of and accept this Offer.
9 Although the page on which that clause appears is not signed by the defendant she did sign the offer. That being so she has acknowledged she had the opportunity to seek legal and financial advice before signing the document and cannot now resile from that position.
10 Issue 2 really repeats issue 1. As I have said although page 10 of the document, the page on which the above clause appears, is not signed the offer itself is signed. That is the end of the matter.
11 Issues 3 and 4 are an allegation that the plaintiff is in breach of the loan agreement contract. Quite how the plaintiff is said to be in breach of the contract is not specified. Having read the defendant's evidence I can see no basis upon which it can be alleged that there has been any breach by the plaintiff of the loan terms and conditions. I am not satisfied this point would stand in the way of judgment.
12 Issue 5 is an allegation that the contract was 'an unjust contract'. It is said to be in breach of the Australian Consumer Law. How it is in breach of the law and why it is unjust is not clear. The offer and the loan terms and conditions are in what might be described as a standard form. They are neither unreasonable nor unfair.
13 Issue 6 is a claim the 'loan agreement only refers to annual percentage rates not variable interest rates'. But the loan terms and conditions refer to variable interest rates and indeed the interest rate went down consistently over the course of the loan. That gives the defendant no cause for complaint.
14 Issues 7 and 8 relate to the variation of the loan from principle and interest to interest only. There is no reason why once the change was made the mortgage which secured the loan should fall away. The way in which the loan was characterised changed but nothing else. The change was requested by the defendant and the request was met by the plaintiff. They cannot be criticised for doing what they were asked to do.
15 Issue 9 refers to 'several issues with the line of credit request letter'. It is not specified what those issues might be. But for avoidance of doubt it seems to me there are no issues with the line of credit request letter. It was written by the defendant's agent and acted upon by the plaintiff. There is nothing sinister in that arrangement.
16 Issues 10 and 11 relate to certain complaints made to authorities about the loan and the plaintiff's conduct. None of these complaints were determined in the defendant's favour - that is to say, there was no suggestion the loan was for any reason not repayable. None of these complaints would deny the plaintiff the relief it seeks.
17 Issue 12 relates to the breakdown of the relationship between the first and second defendants. It is not appropriate to go into any details in relation to Family Court proceedings. It is sufficient if I say these proceedings could not and did not in any way affect the liability of the defendants to make repayment of the loan to the plaintiff.
18 It is somewhat difficult to ascertain just what matters are raised by issues 13 and 14. Insofar as they do attempt to raise an issue as to the service of the default notice the plaintiff has established that the default notice was issued and served in accordance with the loan agreement. That is all that is required to be done to activate the provisions of the loan. Claims in relation to the default notice do not in any way affect the plaintiff's entitlement to recover from the defendant.
19 It is clear then the plaintiff is entitled to summary judgment in CIV 2317 of 2016. That means action CIV 2079 of 2016 must be dismissed - in other words, the summary judgment applications succeed. In any event the claim against Xplore Capital must fail. They were not a party to the loan agreement and there is no possible basis upon which they could be liable to Ms Dandie. The statement of claim lodged by Ms Dandie in CIV 2079 of 2016 does not make any sustainable allegations against the first defendant in that action.
20 Accordingly there will be summary judgment for the plaintiff in CIV 2317 of 2016 and summary judgment for the first and second defendants in CIV 2079 of 2016. I will hear the parties as to the precise form of orders and as to costs.
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