Westpac Banking Corporation Ltd v McLean - [2011] WASC 2

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: WESTPAC BANKING CORPORATION LTD -v- McLEAN [2011] WASC 2

CORAM: KENNETH MARTIN J

HEARD: 19 NOVEMBER 2010

DELIVERED : 19 NOVEMBER 2010

PUBLISHED : 19 JANUARY 2011

FILE NO/S: CIV 3080 of 2009

BETWEEN: WESTPAC BANKING CORPORATION LTD
Plaintiff
AND
SHONA DIMITY McLEAN
Defendant

Catchwords:

Application for summary judgment for possession by mortgagee bank - Late application for adjournment refused - Summary judgment resisted - Matters raised untenable - Judgment ordered

Legislation:

Consumer Credit (Western Australia) Act 1996 (WA)
Rules of the Supreme Court 1971 (WA), O 14
Trade Practices Act 1974 (Cth), s 51AC, s 82, s 87

Result:

Application for judgment granted

Category: B

Representation:

Counsel:

Plaintiff: Mr G Cobby
Defendant: Mr J Forrester

Solicitors:

Plaintiff: Jackson McDonald
Defendant: Ranger Legal

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

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
McLean and Permanent Custodians Ltd [2010] WASAT 127
Miles v Bull [1969] 1 QB 258

KENNETH MARTIN J:
(These reasons were delivered extemporaneously on 19 November 2010 and have been edited from the transcript.)

Refusal of adjournment

I am dealing first with the question of an oral application made this morning by counsel for the defendant, for the plaintiff's application (which is a special appointment) to be adjourned. The adjournment is opposed.
On 5 October 2010 Ms McLean, the defendant, appeared before me in person and I made programming directions that provided for the plaintiff to file and serve further affidavit materials on its summary judgment application by 12 October 2010 and for the defendant to file affidavit materials in opposition by 2 November 2010 under Rules of the Supreme Court 1971 (WA) (RSC) O 14. My directions also provided for the plaintiff's written submissions to be filed by 8 November 2010, and for the defendant's written submissions by 15 November 2010.
Order 5 of my directions of 5 October 2010 provided that the summary judgment application be listed for a special appointment today, Friday, 19 November 2010 at 10.30 am for two and a half hours.
Looking at the transcript of the directions hearing of 5 October 2010, I note that Ms McLean foreshadowed the need to obtain legal advice, in the aftermath of a decision delivered in the State Administrative Tribunal (SAT) which dealt with (and rejected) a number of her claims, including an application to SAT made in respect of a loan and mortgage the subject of this action (with the plaintiff amended to the name of Westpac Banking Corporation Ltd (Westpac), following the recent corporate acquisition of St George Bank Ltd by Westpac).
At that time I said, at ts 4 ‑ 5:
Let me just explain this to Ms McLean what I have in mind. [T]his is essentially a time‑tabling exercise in terms of when we can have an argument that the plaintiff wants to run which essentially is that their case is so clear in terms of the debt that they contend for that there is no point in having a trial about the matter because you don't have a defence. You don't even have an argument by way of defence. That is what they say.
I continued:
Now, the question is when can we hear that. It seems to me I need to give you some time to get some advice and to get your materials together. ... I will set the matter down for a two and a half hour appointment on 19 November 2010. That is what I propose this morning.
Subsequent to that directions hearing there has been further affidavit material filed on behalf of the plaintiff in support of the summary judgment application. Some written submissions have come in, first the plaintiff's outline of submissions and authorities, dated 9 November 2010.
In fact, I only received this morning (although they would appear to have been filed yesterday), written submissions on behalf of the defendant - opposing summary judgment. It would seem that the defendant has just obtained new legal representation. The recent change of representation is the subject of documentation filed at court this morning, just before today's 10.30 am appointment.
The question then is where the interests of justice lie in respect of a late adjournment, bearing in mind that Ms McLean has been representing herself in person and that I have received just now on her behalf, written submissions which I have reviewed quickly this morning.
Some fundamental considerations arise in assessing the oral application for an adjournment made this morning by counsel for the defendant, Mr Forrester.
First of all, I am cognisant that this O 14 summary judgment application has been pending since early 2010 and remains unresolved. Moreover, the debt and possession proceedings go back to December 2009. They have been managed by me in the CMC List, where matters are expected to proceed with expedition and efficiency.
Second, throughout 2010 the action has been essentially 'frozen' in this court, due to the pendency of Ms McLean's applications in SAT - by reference to her arguments that these and some other mortgage arrangements of hers made with financial institutions, were covered by the provisions of consumer credit laws and so were consumer transactions that were within the jurisdiction of SAT to review or unwind on the basis that they were unconscionable.
Determination of these issues by SAT consumed most of 2010, culminating in the recent decision of his Honour Justice Chaney, President of SAT in McLean and Permanent Custodians Ltd [2010] WASAT 127. That decision was delivered on 14 September 2010. Its content is before me as part of materials relied upon today by the plaintiff, in an affidavit of Andrea Joan Preece.
Ms McLean was wholly unsuccessful in persuading SAT that her loan transactions fell within the ambit of the Consumer Credit (Western Australia) Act 1996 (WA). In other words, her transactions were assessed, as they appear on their face, to be business transactions - rather than personal consumer transactions. On that basis they do not fall within the purview of a general review by SAT, by reference to the issue of unconscionability.
The directions hearing held before me on 5 October 2010 came after the resolution of the SAT issues. With that road block out of the way, the plaintiff, not unreasonably, expressed a wish to press for its unresolved application for summary judgment under its chamber summons filed as far back as 22 January 2010, to be heard.
With those matters in mind, I allowed Ms McLean time to consider her position, obtain advice or legal representation, file submissions or evidence if necessary. I set the matter down for a hearing this morning at a special appointment.
In those circumstances it seems to me that today's 11th hour application for an adjournment has to be treated with a degree of scepticism, notwithstanding that Mr Forrester, who appears before me this morning has only, I accept, just been instructed at the 11th hour and has done his best to come to grips with the issues and materials. Nevertheless, I bear in mind the history of the matter and the delay that has already been sustained to date, by reference to the defendant's 2010 unsuccessful excursion to SAT.
Another matter I weigh in the balance is that it seems, with no disrespect to counsel, that this summary judgment application is a fairly straightforward O 14 hearing - brought by the plaintiff on a debt and possession claim by reference to a registered mortgage - and seeking to contend that there is no arguable defence capable of being raised which would warrant the matter going to trial. I do not therefore assess the matter as being so complex or difficult, in terms of a search for a defence argument - to necessarily need any great degree of preparation time in terms of counsel further acclimatising - by reference to mastering the materials - in order to be in a position to identify a point, which if arguable, on the authorities, must require the matter to go to trial.
These considerations also arise to be assessed in light of the High Court's observations in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175, explaining that the concept of prejudice goes beyond simply inter partes considerations affecting the particular participants in civil litigation. There are other people waiting for appointments before this Court to have their matters determined. When a matter is programmed to a hearing, but is not heard on the basis of a late adjournment - prejudice arises more broadly, in terms of the finite court resources being wasted.
Balancing that with the previous considerations I have mentioned, it seems that here I must, in all the circumstances, refuse the adjournment. Accordingly, I require the matter to proceed today.

Resolution of substantive arguments on the plaintiff's RSC O 14 application for possession of mortgaged property

The hearing of the plaintiff's RSC O 14 application proceeds on a statement of claim which was amended by consent, in order to accommodate the change by reason of the original plaintiff being subsumed by Westpac. Those amendments were made by my leave, under a memorandum of consent orders on 12 May 2010.
The amended statement of claim essentially seeks possession for the mortgagee of a mortgaged property which is a unit at 180 Kent Street, Busselton. The Busselton unit was acquired by the defendant, using loan funds advanced by the plaintiff.
It is important to see, by reference to the amended statement of claim, that the plaintiff's cause of action seeking possession of the land, is predicated upon an agreement in writing of 1 February 2008 - pursuant to which it is contended (referring to par 3) that:
(a)St George agreed to advance the sum of $320,000 to and at the request of the Defendant;
(b)the Defendant agreed to make 360 monthly repayments over the term of the Loan; and
(c)the Defendant acknowledged that St George would take a mortgage in respect of the Property as security.
The statement of claim pleads that the property at Busselton was mortgaged by registered mortgage K503873 to the plaintiff, at Landgate, on 12 February 2008. The mortgage expressly incorporated provisions of Memorandum G294339, filed and registered with the Department of Land Administration.
The amended statement of claim invokes in the plaintiff's favour express terms of that Memorandum, as identified at par 6 of the pleading. But most relevantly, par 6(b) contends:
default under the mortgage would occur if, among other things, an amount owing was not paid by the defendant to St George on time (cl 19).
There follows pleaded reference to the various standard default clauses, as referred to in the balance of par 6, including the provision for enforcement after a default (by reference to cl 20.1 and cl 20.3) and with a miscellaneous provision in respect of recoupment of the bank's expenses.
The amended statement of claim proceeds on the basis that the loan funds were advanced to the defendant pursuant to the loan agreement (a loan agreement of 1 February 2008) as well as under the terms of the registered mortgage.
Default is pleaded to have occurred on 14 October 2009, at which time the defendant is said to have been in arrears to the extent of some $7,412. Ms McLean received a notice of default on 15 October 2009. Her default has not been remedied.
The relief sought on the RSC O 14 application, as I indicated, is an order that the defendant deliver up to the plaintiff, vacant possession of the Busselton unit.
It is clear that the plaintiff's cause of action seeking possession invokes reliance on the loan agreement of 1 February 2008, as well as to the registered mortgage and incorporated provisions within the Memorandum forming part of the mortgage, as identified in par 6. Relevantly, the plaintiff's statement of claim contends that its loan was advanced both pursuant to the loan agreement and as well, under the mortgage.
In these proceedings the evidentiary materials relied upon by the plaintiff to satisfy O 14 comprised two affidavits. First is the affidavit of Ms Edwards (as she was then known) sworn on 21 January 2010. Relevantly, that affidavit of Ms Edwards, commencing at page 6, contains a document of some seven pages - which concludes on page 11 of the affidavit - with an offer by the bank in terms of a loan amount dated 30 January 2008, followed by the acceptance of the borrower. This is seen on page 11, across some seven paragraphs, one of which, par 7, reads:
By signing this document you [the borrower] declare that the information you gave in your application for this loan (including any declaration as to the purpose of the loan) is still correct and not misleading.
Uncontroversially, page 12 carries the signature of the defendant, and the observable date, 1 February 2008.
The rest of Ms Edwards' affidavit essentially identifies mortgage provisions and the default that is said to have occurred. None of that seems today, on any view, to be controversial.
The affidavit also discloses that the mortgaged unit at Busselton has been the subject of a tenancy at will, it being let out to a third person. That person has been served with notice of the proceedings and of today's hearing, and given an opportunity to participate, but has not done so.
The second affidavit relied upon by the plaintiff is by solicitor, Andrea Joan Preece, sworn 23 September 2010, and deals with the circumstances in which this loan has been the subject of consideration in SAT.
Ms McLean took the plaintiff to SAT on the basis that the lending arrangements were argued by her to be governed by the Consumer Credit (Western Australia) Act and therefore subject to SAT's jurisdiction. The loan arrangements in that context could potentially be the subject of the exercise of the extensive powers of SAT to adjust or vary the mortgage, or even to discharge it, on SAT's jurisdiction - arising where there is shown to be conduct contrary to the Consumer Credit (Western Australia) Act, or more broadly speaking, unconscionable conduct.
The eventual consequence of the SAT proceedings, which occupied a major part of 2010, was the conclusion by the learned President that the Consumer Credit (Western Australia) Act did not apply to these mortgage and loan agreements. Those issues were the subject of his Honour's considered reasons, in the context of a number of loans concerning Ms McLean, one of which is the present loan.
That is the material relied upon by the plaintiff to verify the fairly orthodox facts the subject of its pleading, by reference to the loan, mortgage, default, the breach of loan agreement and mortgage terms and the mortgagee asserted consequent entitlement to possession of the security premises as its remedy.
Resisting the application for summary judgment, Mr Forrester appeared before me this morning, in the circumstances I earlier described; briefed late and having attempted to master the materials as best he could, whilst also putting before me (late) a written outline of submissions, which I have now considered.
Mr Forrester drew my attention to the fact that the threshold for a plaintiff to surmount, in terms of succeeding on an application for summary judgment under O 14, is an onerous one. Many case authorities, conveniently collected in the decision of the High Court in Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, establish that the summary jurisdiction must be exercised with great care. It should not be exercised unless it is very clear that there is no real question warranting pursuit at a trial.
That is the standard that I seek to apply, in the assessment of the materials before me today.
Assessed at completion of my review of all the evidence relied on by the plaintiff, the prima facie position looks to be that there is no reason why this plaintiff should be kept out of its remedies arising under its contractual and legal rights as mortgagee, in seeking to obtain possession of the Busselton unit, given Ms McLean's ongoing unremedied default under her loan and mortgage.
However, counsel for the defendant relied upon a number of materials, in seeking to show, and without disrespect to his arguments, that O 14 r 3 allows a court to give leave to defend not only where there is an identified defence issue or question, particularly a question of fact in dispute which ought to be tried, but also, from words found in O 14 r 3(1) if 'there ought for some other reason to be a trial of that claim or part' (emphasis added).
Counsel drew my attention to an instance of the application of the 'some other reason' principle, in the decision of Sir Robert Megarry in Miles v Bull [1969] 1 QB 258, 265 ‑ 266. Counsel relied upon evidentiary materials directed to his contention that this was a case where an examination of those materials demanded that the court not order summary judgment, and rather, should allow the matter to proceed to trial. In the context of the trial process forensic tools such as discovery, inter partes, third‑party discovery, interrogatories, and matters of that nature could be used by Ms McLean in circumstances which, it was submitted, warranted at least, further investigation. The situation therefore fell squarely, it was put, within the ambit of a court's remit, to conclude that there was 'some other reason' why a matter ought not be the subject of summary determination and be allowed to proceed to trial.
This submission was focused, however, in an evidentiary sense, really to the ramifications of a document referred to as a loan application. However, this document is not the loan application agreement that is sued upon (of 1 February 2008) that I have earlier identified in Ms Edwards' affidavit. Rather, it is another loan document, found at various places. First, I should identify for the record, the evidentiary materials relied upon by counsel for the defendant, in resisting the O 14 application on behalf of Ms McLean.
A number of affidavits were relied upon. First was a further (third) affidavit filed on behalf of the plaintiff in the proceedings, by Ms Edwards and sworn 8 March 2010. This affidavit was not read on behalf of the plaintiff. But by reason of it being material on the court file, the defendant sought to rely on it, as part of its defence case. There was no objection to this. Accordingly, the defendant made submissions by reference to the content of this affidavit, particularly to one annexure, a loan application document comprising some 14 pages, found at between pages 11 ‑ 26.
The burden of the resistance submissions drew my attention to a somewhat uniform facsimile imprint seen at the top of this document, showing the date 20 December 2007, at 4.33 pm, and then ranging to page 26, the annotation of 20 December 2007 and the time, 4.36 pm. My attention was drawn to the 13th and 14th pages of this facsimile, to what appears to be a further facsimile imprint, which carries the annotation upon only two pages, of '19 Dec 2007, 13.28' and '13.29', respectively. What follows, appear to be words, 'David Manners, MPS PhC JP'.
The defence submission was that the existence of the extra imprints on pages 13 and 14 with the date '19 Dec 2007', present on only two of the 14 pages of the loan application, shows a composite document. It was submitted that the circumstances in which such composite document might have been put together were of such potential moment to the defence, that they warranted further scrutiny and examination in the context of a trial.
Apart from Ms Edwards' (third) affidavit of 8 March 2010 the defendant also relied upon a number of other affidavits that were sworn by the defendant in the proceedings.

Ms McLean's first affidavit is sworn 23 February 2010. I note at page 4 it contains as attachment, 'SDM1', the same loan application document; see pages 4 ‑ 19 of that affidavit. Again, pages 13 ‑ 14 of the facsimile seem to display the David Manners' facsimile imprint for 19 December 2007 at 13:28 and 13:29, respectively.
Next relied upon was Ms McLean's affidavit sworn 23 March 2010. Again, it would appear the same loan document appears as attachment 'SDM2', between pages 11 ‑ 26 of that affidavit. Again, on the last pages 13 ‑ 14 of the facsimile, is seen the annotation by reference to David Manners MPS PhC JP at 13:28 and 13:29, respectively.
In a third affidavit of Ms McLean, sworn 4 November 2010, she refers 'SDM1' (starting at what would, if numbered, be the fifth page of that affidavit), to the same 14‑page document with the same facsimile endorsements by reference to David Manners of 19 December 2007 at 13:28 and 13:29, respectively.
The burden of the written submissions of 18 November 2010, which I saw this morning, filed on behalf of Ms McLean, is found at pars 7 ‑ 10.
The defence argument is that there is a basis for further inquiry, by reference to the composite loan application document, in terms of potential misleading and deceptive conduct - which has impacted adversely on Ms McLean, and which might carry through further to causes of action for statutory relief, pursuant to either s 82 or s 87 of the Trade Practices Act 1974 (Cth), or to some other remedy, such as for statutory unconscionability, or even equitable relief, or the statutory remedy of unconscionability, arising under s 51AC of the Trade Practices Act.
[I observe at this point, for completeness, that Ms McLean has actually filed a defence, whilst she was acting in person in this matter, which is dated 29 January 2010. On my analysis, her defence pleading goes no further than essentially putting the plaintiff to proof of its case for the loan and to all relief it seeks, by reference to its mortgage.]
In her three affidavits sworn between February and November 2010, it will now be seen, as I have said, that Ms McLean makes reference in each to the same loan application document of December 2007. But it is important to recall that this is not the loan agreement the plaintiff sues upon, by its statement of claim.
It is interesting to contrast across the course of her three affidavits what Ms McLean says about the December 2007 document on the three occasions she refers to it.
In her affidavit of February 2010, which was sworn in the context of seeking a stay of execution, by reference to the pendency (then) of her proceedings in SAT, she said, at par 2 and par 3, by reference to the composite document:
The loan application was not completed by me but by the loan introducer, Evangelina Thai. I provided the details relating to property that I owned and other assets, however details relating to income are I believe inaccurate.
The introducer included details of employment and income which were not correct. For example, I had not been self employed full time for a period of 10 years as a sales consultant/property manager. Needful Nostalgia was a small gift shop that I owned for approximately four years between 1998 and 2001 I did not advise Evangelina Thai or any other person that I had been self employed for ten years.
Ms McLean said that her base income at the time was only approximately $50,000 per annum, from rental income and superannuation. It would appear that a different (higher) figure, was stated by the loan introducer on this document, namely a gross annual base income of $450,000. As to that information, at par 4 Ms McLean, in February 2010, said:
[A]t no time did I produce any verification of this income and I did not receive this income.
She then said at par 5:
The credit provider granted me the loan -
['the credit provider', I take to be reference to St George Bank]
without making any enquiry into my ability to make the repayments as required. I was not asked for any documentation to confirm my income by either the introducer or the Plaintiff.
In referring to the loan application of 2007 at par 6, she said:
I refer to the attached Loan Application SDM1 under the heading of 'Loan Details'. At no time did I ever advise the bank that the intention of the loan proceeds was to 'purchase vacant land to be developed for residential investments' as stated in the application form.
At par 7, she goes on to say that, in fact, her intent at the time was to purchase a residential property. She said:
The loan introducer was fully aware or should have been aware of this information from the documentation.
She concluded at par 9:
I have lodged an application with the State Administrative Tribunal (SAT) in respect of what I believe are breaches by the Plaintiff of the Consumer Credit Code, and the SAT is the appropriate forum to address the merits of my claim.
In her next affidavit of March 2010, Ms McLean again refers to the 2007 loan application document, completed by Ms Thai. She said at par 3:
When I applied for the loan around the 20th December 2007 to Westpac (St George) for the loan, my independent broker was Evangelina Thai.
Ms McLean attaches as 'SDM2', a copy of the application and refers in pars 5 ‑ 9 to alleged misrepresentations, which she says concerned the true purpose of her loan, being misstated. In fact, she says, her loan was not for a business purpose. It was rather she said for the acquisition of the Busselton unit as her holiday home; see par 6 of her affidavit.
There was also, she said, a misrepresentation made over her described occupation as a sales consultant and property manager, which was false. Likewise, her status as self‑employed, was wrongly stated. Such in fact had not been the case since 2001. Likewise, she again refers to the gross overstatement of her annual income at $450,000 per annum on this loan application, filled in by Ms Thai, as incorrect.
Again, Ms McLean made reference to those matters as being relevant to her then pending application to SAT.
SAT then resolved the matter, as I have explained, on the basis that the assertions by Ms McLean, to the effect that the transactions were of a personal rather than a business character, were not accepted.
It was in the wake of the failure of the venture into SAT, that Ms McLean's further affidavit of 4 November 2010, came to be sworn. Now it was put, at par 3, again by reference to the composite loan document of 14 pages, with the two facsimile endorsements found on the last pages, to which I have referred, that Ms McLean now said:
The Loan Application provided to the Defendant by the Plaintiff dated 18 December 2007 is a false document with handwriting totally unknown to myself.
The assertion that this loan document was 'provided to' Ms McLean by St George Bank or Westpac, does not seem to me to be correct, or sustainable. Rather, it seems from all the earlier materials presented, that the application document of 2007 in question, was actually obtained as part of arrangements made with Ms Thai, in the circumstances to which Ms McLean referred in her earlier affidavits.
Nevertheless, continuing at par 3, she now said:
The application contains factual material and statements which were not provided by myself.
And:
The application is a false document totally different to the application I completed, signed and sent to Evangelina Thai.
There is also seen an assertion at par 4, that was objected to in terms of its second sentence, to the effect that this document was only provided to Ms McLean on 26 February 2010. In par 5, she swore:
The Loan Application I completed, signed and faxed to Evangelina Thai contained my true income in the vicinity of $60,000 per annum.
I pause to interpolate at this point that no document has been put before the Court, notwithstanding the stage that this matter is being determined, showing an income figure of $60,000, on a document faxed by Ms McLean to Ms Thai. Indeed, no document consistent with it having been sent, containing information under the hand of, or provided by Ms McLean, has been put before this court whatsoever. All that appears are the four references, in four affidavits, to what I assess to be the one loan application document of 2007. However, that loan document, I reiterate, is not the loan agreement that Ms McLean has been sued upon.
Ms McLean's affidavit of 4 November 2010 makes reference to statements about the unrealistic level of her income, and an assertion that at no stage did Ms McLean assert that her income was ever above $60,000. A statement in the last line of par 13, about conduct of Ms Thai being ascribed to the plaintiff bank, was objected to. The objection was upheld. As an assertion of law it is more appropriate for submission.

Decision

The question then is whether what has emerged through the defendant's materials causes me to think, particularly by reference to submissions that have been made about RSC O 14 r 3(i), that it is inappropriate for the plaintiff to be granted summary judgment, because there should be permitted to be pursued an avenue for inquiry in a trial context concerning the 2007 composite loan document, found in many affidavits.
In my view, this submission cannot be accepted. The basis for the relief which is pursued by the statement of claim, is grounded upon a different (unimpugned) loan agreement - not the composite loan application document of 2007. It was contended by Mr Forrester that this does not matter, because there may possibly have been misleading or deceptive conduct arising in the circumstances in which the loan was applied for, and which has capacity to adversely colour all that followed, with broad remedial relief available to the defendant via remedies that the provisions in the Trade Practices Act can deliver (eg, s 87 Trade Practices Act).
In principle, that is all true. But in my assessment, the affidavit material put before the court by Ms McLean, from February 2010 through to November 2010 (indeed from January of 2010, if I take into account her pleaded defence), do not provide a sufficient basis for the court to reach a view that there could be a reasonable or viable prospect that information might emerge or be obtained through further inquiries about the 2007 loan document, that may be likely to raise, or assist in raising, some arguable defence against the relief (possession) currently sought by the plaintiff.
There are a number of reasons for that conclusion. First, the 19 December 2007 facsimile imprint endorsements, by reference to David Manners, as seen on pages 13 ‑ 14 of the composite facsimile, look to me to be wholly equivocal. They do not, on their face, suggest fraud, or misleading and deceptive conduct. They may suggest that at some earlier point in time before 1 February 2008, there has been a passing facsimile communication to Mr Manners. No evidence emerged about any attempted inquiries made of Mr Manners to date, or otherwise, supporting potential defence arguments suggesting fraud, or misleading and deceptive conduct.
Second, the relevance of a 2007 document needs to be measured against the overall strength of the plaintiff's case, grounded upon a different and unimpugned loan agreement of 1 February 2008, in which there is found the express declaration made by Ms McLean, as to all information stated therein, being confirmed by her as continuing to be correct.
Third, there is no doubt that the loan funds were actually advanced to Ms McLean. They were received by her. They were used for the purpose of her acquiring her unit at Busselton. A registered mortgage is seen to exist, by reference to the title search obtained, containing the orthodox covenants. One of those covenants allows for possession to be obtained in the face of default by the mortgagor in making repayments. Default is clearly established.
Accordingly, I see no basis, viewing the matter at its most generous level of potential arguability, to conclude that two December 2007 facsimile endorsements by reference to David Manners may be capable of relevantly intruding to undermine this secured loan transaction ‑ as a relevant consideration going to diminish the rights of this mortgagee to obtain possession of the mortgaged property, in circumstances where a 30‑year loan, by reference to monthly repayments of principal and interest, remains in long‑term default.
In those circumstances, allowing the defendant even more time to pursue foreshadowed enquiries under the forensic processes, in a lead up to a trial, in circumstances where she has already had considerable time since proceedings were commenced in December 2009, presents to me to be an exercise in prolonging the futile. I cannot accede to what is, in effect, a request to allow a trial to proceed, essentially on a basis of what could possibly emerge.
In summary, what has been put before the court by the defendant, both in the course of argument and the RSC O 14 evidentiary materials, is simply not at a level sufficient to suggest that further enquiry via the medium of a trial - concerning a 2007 facsimile composite loan document - would be likely to unearth relevant material bearing upon furthering an arguable defence for this defendant.
Furthermore, it is also a relevant consideration that the defendant's arguments that further enquiries be allowed under the forensic process associated with a trial, are made in circumstances where there would appear to be a concerning degree of evolution in Ms McLean's position as regards this 2007 facsimile document - ranging between her bland defence of January 2010, to a position (expressed in November 2010), where she seeks to portray the December 2007 facsimile document as a complete falsity, and indeed a document of the plaintiff. No evidence supports those bare and late contentions.
Potential remedies articulated today, as emerging from pursuing lines of enquiry at a trial, also strike me as potential remedies, if anything, by way of counterclaim. No counterclaim has been pleaded. Nor has any affirmative defence by way of pleading been advanced by this defendant.
All this is to be evaluated in a context where a summary judgment application has been pending since 22 January 2010, and has, in effect, been delayed until September 2010, by what have proven to be unsuccessful proceedings raised against this loan and mortgage, in SAT. I also see no basis to think that anything has emerged suggesting that relevant misrepresentations could be attributed to the plaintiff, arising out of what passed as between Ms McLean and Ms Thai, in 2007.
Most of the so‑called arguable representations look (if made) to me to be representations made towards influencing and harming the lender, that is, upon St George Bank by reference to statements concerning the defendant's exaggerated employment status and a falsely stated higher income. Therefore, to the extent that such representations might be argued to have any adverse causative outcomes, in terms of damage to the defendant, they rather look, if anything, on my assessment, to be causatively directed towards potentially harming the plaintiff, by misleadingly influencing it into advancing the loan to Ms McLean, by reference to her satisfying lending criteria ‑ that the plaintiff would apply in assessing her loan application. So there are, in any event, conceptual causative obstacles for the defendant, in her resistance arguments based upon asserted misrepresentations.
Finally, it seems to me overall, that if there has been a scenario of deceit or misleading and deceptive conduct as arising between the broker (Ms Thai) and Ms McLean, that she holds remedies in that respect, as against the broker, that are not closed off to her by the success of the plaintiff on this application for summary judgment.
Accordingly, I will allow the application for summary judgment by the plaintiff, and deny the defendant leave to defend.