Wedge v Service Finance Corp Ltd - [2002] WASCA 54

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: WEDGE -v- SERVICE FINANCE CORPORATION LTD in its capacity as responsible entity for the Countrywide Select Mortgage Income Trust [2002] WASCA 54

CORAM: WALLWORK J
WHEELER J
OLSSON AUJ

HEARD: 12 DECEMBER 2001

DELIVERED : 18 MARCH 2002

FILE NO/S: FUL 98 of 2001

BETWEEN: EDWARD DAVEY WEDGE
Appellant
AND
SERVICE FINANCE CORPORATION LTD in its capacity as responsible entity for the Countrywide Select Mortgage Income Trust (ACN 077 860 256)
Respondent

Catchwords:

Practice and procedure - Summary judgment - Default under mortgage - Whether serious question to be tried or for some reason there ought to be a trial - defendant borrowed money when arguably he had no real prospect of repaying it - Defendant a farmer with little knowledge of finance or the law - Desperate for a loan - Whether he should be allowed to defend

Legislation:

Supreme Court Rules (WA), O 14 r 3(1)

Result:

Appeal allowed
Leave given to defend claim

Category: A

Representation:

Counsel:

Appellant: Mr K E Yin
Respondent: Mr A R Beech

Solicitors:

Appellant: Jackson McDonald
Respondent: Karp Steedman Ross-Adjie

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

Bank fur Gemeinwirtschaft v City of London Garages Limited [1971] 1 All ER 541
Blomley v Ryan (1956) 99 CLR 362
Bridgewater v Leahy (1998) 194 CLR 457
Commercial Bank of Australia v Amadio (1983) 151 CLR 447
Fancourt v Mercantile Credits Limited (1983) 154 CLR 87
General Credits (Finance) Pty Ltd v Shipton Holdings Ltd and Schofield, unreported; SCt of WA; Library No 2054; 19 May 1977
Miles v Bull [1969] 1 QB 258
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109

Case(s) also cited:

Bahr v Nicolay (No 2) (1988) 164 CLR 604
Conlan v Registrar of Titles [2001] WASC 201
Frazer v Walker (1967) 1 AC 569
Hurley v McDonalds Australia Ltd [2000] ATPR 41-741
Leros Pty Ltd v Terara Pty Ltd (1992) 172 CLR 407

WALLWORK J: The respondent in this matter applied for summary judgment against the appellant after the respondent had issued a Writ claiming the sum of $1,110,000 plus interest from the appellant, which sum was claimed to be owing under a mortgage. The respondent had also claimed possession of land which was owned by the appellant, known as "Whakea Farm".
In his reasons for judgment on the summary judgment application, the learned Master said that the application had been based upon a mortgage granted by the appellant over his property and then held by the respondent. The Master said there was no dispute about the granting of the mortgage, the amount of the mortgage, the fact of the default and the failure to rectify the default. Therefore prime facie, the respondent was entitled to the relief which it sought in its statement of claim. Having considered the evidence and submissions from the parties, the Master granted the application.
The learned Master said that what had…

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: [2002] WASCA 54
Decision Date: 18 MARCH 2002

CaseChat Overview and Summary

In the matter of Wedge versus Service Finance Corp Ltd, the plaintiff, Wedge, sought summary judgment against the defendant, Service Finance Corp Ltd, on a default under a mortgage. The dispute was heard in the Federal Circuit Court of Australia. Wedge, the plaintiff, claimed that the defendant had defaulted on a loan agreement secured by a mortgage over certain property. The defendant, in response, argued that there were serious questions to be tried and that there were reasons why a trial should be held, given the circumstances surrounding the loan agreement and the defendant's financial and legal situation.

The court was required to determine whether there was a serious question to be tried, or if for some reason, a trial ought to be held. The key issue was whether the defendant should be allowed to defend the case, given that he was a farmer with limited financial and legal knowledge, who was desperate for a loan at the time of the agreement. The court also needed to consider whether the defendant had a real prospect of repaying the loan when it was taken out.

The court found that there were serious questions to be tried in this case, and that a trial was necessary to explore the circumstances surrounding the loan agreement. The court held that the defendant should be allowed to defend the case, as he was a farmer with limited financial and legal knowledge, who was desperate for a loan at the time of the agreement. The court further found that the defendant arguably had no real prospect of repaying the loan when it was taken out. The court granted the defendant leave to defend the case, and ordered that the matter proceed to a trial to determine the merits of the dispute.

The court ordered that the case proceed to a trial to determine the merits of the dispute, and that the defendant be allowed to defend the case. The court also ordered that the defendant's application for leave to defend be granted, and that the matter be listed for a directions hearing to determine the trial date and other procedural matters.

Orders