Westpac Banking Corporation v Anderson - [2017] WASC 106

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: WESTPAC BANKING CORPORATION -v- ANDERSON [2017] WASC 106

CORAM: PRITCHARD J

HEARD: 15 SEPTEMBER 2016

DELIVERED : 13 APRIL 2017

FILE NO/S: CIV 1970 of 2013

BETWEEN: WESTPAC BANKING CORPORATION
Plaintiff
AND
KEITH ROBERT ANDERSON
First Defendant
SUE-ANN ELIZABETH ANDERSON
Second Defendant

Catchwords:

Practice and procedure - Inherent jurisdiction to control abuse of Court's process - Where issues raised in later proceedings substantially reiterate those in earlier proceedings

Practice and procedure - Rules of the Supreme Court 1971 (WA) O 20 r 19(1)(d) - Strike out - Where later proceedings are abuse of process

Practice and procedure - Rules of the Supreme Court 1971 (WA) O 14 - Summary judgment - No defence to the action - Where defendant has not adduced evidence that there is a defence

Unconscionability - Statutory unconscionability - Whether conduct meets the standard in Australian Securities and Investment Commission Act 2001(Cth) s 12CB and Trade Practices Act 1974 (Cth) s 51AC - Circumstances amounting to unconscionable conduct - Whether rate of interest on default and capitalisation unconscionable

Legislation:

Australian Securities and Investment Commission Act 2001 (Cth), s 12CB, s 12CC, s 12GM
Civil Liability Act 2002 (WA), s 5AI, s 5AK, pt 1F
Competition and Consumer Act 2010 (Cth), s 87CD, s 87CB
Fair Trading Act 2010 (Cth), s 9, s 79
Rules of the Supreme Court 1971 (WA), O 14 r 1, O 16 r 1, O 20 r 19
Trade Practices Act 1974 (Cth), s 51AI, s 52, s 84(2), s 87CD

Result:

Application granted
Summary judgment awarded to the plaintiff on the action and on the counterclaim

Category: B

Representation:

Counsel:

Plaintiff:     Mr B C Smith
First Defendant              :     Mr D J Garnsworthy
Second Defendant         :     Mr D J Garnsworthy

Solicitors:

Plaintiff:     Dentons
First Defendant              :     In person
Second Defendant         :     In person

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

Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Anderson v Effexseven (1999) 10 ANZ Ins Cas 61‑424
Attorney General of New South Wales v World Best Holdings Ltd [2005] NSWCA 261; (2005) 63 NSWLR 557
Australian Competition Ltd and Consumer Commission v Lux Distributors Pty Ltd [2013] FCAFC 90
Australian Securities and Investments Commission v National Exchange Pty Ltd [2005] FCAFC 226; (2005) 148 FCR 132
Bankwest (a division of CBA) v Mann [2015] WASC 187
Barrick Gold of Australia Ltd v FL Smidth Inc [2007] WASC 186
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Body Bronze International Pty Ltd v Fehcorp Pty Ltd [2011] VSCA 196; (2011) 34 VR 536
Canon Australia Pty Ltd v Patton [2007] NSWCA 246; (2007) 244 ALR 759
Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18
Deputy Commissioner of Taxation v Heaton (1997) 35 ATR 450
Ekes v Commonwealth Bank of Australia [2014] NSWCA 336
Evans Deakin & Co Pty Ltd v Kaiser Engineers & Constructors Inc [1968] Qd R 379
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
Gel Custodians Pty Ltd v Dewar [2014] WASC 177
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Hee v Nyoni [2014] WASC 44
HSBC Bank Australia Ltd v Mavaddat [2015] WASC 153
Hurley v McDonald's Australia Ltd (2000) ATPR 41‑741
Jacka Nominees Pty Ltd (In liq) v Edwards Karwacki Smith & Co Pty Ltd (Unreported, WASC, Library No 920512, 12 October 1992)
Kellas‑Sharpe v PSAL Ltd [2012] QCA 371
Kermani v Westpac Banking Corp [2012] VSCA 42; (2012) 36 VR 130
Lill v Merchant Capital (WA) Ltd (1996) 15 WAR 536
Mavaddat v HSBC Bank Australia Ltd [No 2] [2016] WASCA 94
MCC Proceeds Inc v Lehman Bros International (Europe) [1998] 4 All ER 675
McInnes Concrete Service Pty Ltd v Inform Formwork Pty Ltd (Unreported, WASC, Library No 940251, 11 May 1994)
Michael Wilson and Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109
Newmont Power Pty Ltd v Barrick Gold of Australia Ltd [2008] WASCA 74
Orchard Holdings Pty Ltd v Paxhill Pty Ltd as trustee for Paxhill Trust trading as Property People [2012] WASC 271
Paciocco v Australia & New Zealand Banking Group Ltd [2015] FCAFC 50; (2015) 236 FCR 199
Paciocco v Australia & New Zealand Banking Group Ltd [2016] HCA 28; (2016) 333 ALR 569
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589
Pro Property Pty Ltd v Orchard Holdings Pty Ltd [2013] WASCA 283
PSAL Ltd v Kellas‑Sharpe [2012] QSC 31
Reichel v Magrath (1889) 14 App Cas 665
Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19
Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198
Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251
Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93
SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138
Smith v Town and Country Bank (Unreported, WASCA, Library No 970716, 18 December 1997
Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118
State Bank of New South Wales Ltd v Alexander Stenhouse Ltd (1997) Aust Torts Reports 81-423
The State of Western Australia v Rothmans of Pall Mall (Australia) Ltd [2001] WASCA 25
Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389
WA Country Builders Pty Ltd v Premium Coastal Property Pty Ltd [2012] WASC 236
Wallingford v Mutual Society (1880) 5 App Cas 685
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378
Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598
Whitehall Holdings Pty Ltd v Custom Credit Corporation Ltd (Unreported, WASCA, Library No 9189, 13 December 1991)
Wright v Wright [2002] WASC 30

PRITCHARD J: Mr and Mrs Anderson (the Andersons) are the registered proprietors of land in Mosman Park (the Property). The Property is subject to a first registered mortgage to Westpac Banking Corporation (the Mortgage), to secure a loan made in 2008 by Westpac to the Andersons, in the sum of $3.8 million pursuant to a loan agreement (the Loan Agreement). The Andersons have not made repayments on the balance said to be outstanding on the Loan Agreement for several years.
In the present action, Westpac seeks possession of the Property.
The Andersons filed a defence and subsequently added a counterclaim. The current iteration of that document is the amended defence and counterclaim dated 9 March 2016 (ADCC).
In their defence, the Andersons deny that Westpac is entitled to possession of the Property, on three bases. First, they plead that Westpac made representations to them which were misleading or deceptive, contrary to s 52 of the Trade Practices Act 1974 (Cth) (TPA), that they relied on those representations and that they suffered loss and damage as a result (the s 52 claim). Secondly, the Andersons plead that in making the representations Westpac owed a duty of care to them, so as not to cause economic harm, that Westpac breached that duty of care, and that the Andersons suffered loss or damage as a result (the negligence claim). Thirdly, the Andersons plead that Westpac is acting unconscionably in seeking to enforce the terms of the loan agreement and the mortgage, because the interest rates charged included penalty interest rates which the Andersons claim are substantially in excess of Westpac's costs of funds and its overheads, that Westpac's conduct was and is contrary to s 12CC of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act)[1] and s 51AC of the TPA. The Andersons claim they have suffered loss and damage as a result of Westpac's conduct and that in consequence, the loan agreement and mortgage should be declared void, or alternatively should be varied (the statutory unconscionability claim) .
[1] The prohibition on unconscionable conduct in the ASIC Act in fact appears at s 12CB.
In their counterclaim, the Andersons simply repeat the substantive provisions of their defence. They claim that as a result of Westpac's conduct, they have suffered loss and damage, namely the loss of a dividend which would otherwise have been declared by a company of which they are the directors and shareholders, Orchard Holdings Pty Ltd, in an amount in excess of $8 million.
The application by Westpac which is the subject of these reasons (the Application) in fact comprises three separate applications. First, Westpac applies for summary judgment on its action, and an order for possession of the Property, pursuant to O 14 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC). Secondly, Westpac applies for summary judgment on the counterclaim pursuant to O 16 r 1 RSC. Amongst other things, it says that the matters pleaded in the ADCC constitute an abuse of the process of the Court. In the alternative, Westpac seeks an order that the counterclaim be permanently stayed on the basis that it is an abuse of the process of the Court, or pursuant to the principles set out in Port of Melbourne v Anshun.[2]Thirdly, Westpac applies to strike out the ADCC in its entirety, or in large part, pursuant to O 20 r 19 RSC on the grounds that most of the paragraphs of the ADCC do not disclose a reasonable ground of defence, are scandalous, vexatious or frivolous, may prejudice, embarrass or delay the fair trial of the action, or are otherwise an abuse of the process of the Court.
[2] Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589.
Westpac requires the leave of the Court to bring its applications for summary judgment, and an extension of time within which to bring its application to strike out the ADCC, because each of those applications was brought outside the time permitted under the RSC.
For the reasons set out below, the ADCC, save for those paragraphs which pertain to the statutory unconscionability claim, will be struck out on the ground that for the Andersons to proceed with that pleading would constitute an abuse of the process of the Court.
At the hearing, counsel for the Andersons expressly withdrew reliance on the statutory unconscionability claim as part of the counterclaim.[3] Consequently, following the strike out for abuse of process, the counterclaim is devoid of any content. Westpac is therefore entitled to summary judgment on the counterclaim.
[3] ts 123 ‑ 124.
That leaves the paragraphs of the defence which pertain to the statutory unconscionability claim. Having very carefully considered Westpac's application for summary judgment, and all the material before the Court, I am satisfied that the Andersons do not have a defence to Westpac's action for possession. While I have taken into account that if a statutory unconscionability claim were made out, one of the powers of the Court under s 12GM of the ASIC Act, or s 51AC of the TPA, would be to set aside the Loan Agreement, the Andersons have failed to file any evidence at all to support the conclusion that their defence is anything more than mere assertion. Accordingly, Westpac's application for summary judgment on its action will be granted and there will be an order that the Andersons give possession of the Property to Westpac.
In these reasons for decision, I deal with the following matters:
1.Overview of Westpac's action, and the defence and counterclaim;
2.Why leave to proceed, or an extension of time, should be granted to Westpac to bring the Application;
3.Westpac's applications for summary judgment - the evidence on which it relied, and the evidence adduced by the Andersons in response;
4.Why it would be an abuse of the process of the Court for the Andersons to litigate the case pleaded in the ADCC, apart from the statutory unconscionability claim;
5.Why Westpac is entitled to summary judgment on the counterclaim;
6.Why Westpac's application for summary judgment on its action should be granted.

Overview of Westpac's action, and the defence and counterclaim

Westpac's action

Westpac's action was commenced by writ on 19 June 2013. In its Statement of Claim,[4] Westpac pleads that:
[4] Amended statement of claim filed 6 December 2013 (ASOC).
•on 21 August 2008 it entered into the Loan Agreement with the Andersons, which was described as a Bridging Option Home Loan Agreement;
•pursuant to the Loan Agreement, the Andersons borrowed money (the loan amount). They agreed to repay it to Westpac within a period of 6 months, in accordance with the terms of the Loan Agreement. In addition, the loan was made in accordance with the terms of a Memorandum of Provisions (MOP) which formed part of the Mortgage granted to Westpac over the Property[5] to secure the repayment of the money borrowed. (The loan amount was also secured by an existing mortgage over a property owned by the Andersons in Trigg (the Trigg property). However, the Trigg property was sold in 2009, and the mortgage over that property was discharged, leaving the Property as the remaining security for the Loan Agreement);[6]
•the terms of the Loan Agreement and the MOP included a term that the Andersons would be in default if they did not pay any of the loan amount when it fell due, and that in the event of a default, Westpac could issue a notice of default providing a period of time within which the default may be rectified, failing which the whole of the loan amount due would become due and payable, and Westpac could sue the Andersons for that amount and would be entitled to take possession of the Property;[7]
•between August 2009 and October 2010, the parties varied the Loan Agreement to vary the amount of credit available and the final repayment date. The final repayment date for the loan under the Loan Agreement, as varied, was 31 January 2011;[8]
•the Andersons did not repay the balance of the loan amount by that date;[9]
•Westpac issued a Notice of Default dated 19 April 2013 to the Andersons, but they did not rectify their default within the time specified in that Notice, nor did they repay the balance of the loan amount after the final repayment date;[10]
•the whole of the amount owing under the Loan Agreement is due and payable and Westpac is entitled to possession of the Property.

The ADCC

[5] ASOC [3].

[6] ASOC [6].

[7] ASOC [5].

[8] ASOC [7] - [11].

[9] ASOC [12].

[10] ASOC [14] - [15].

The Andersons are not legally represented in this proceeding. They were initially represented by solicitors, and the defence they originally filed was prepared by their solicitors. However, by the time they filed the ADCC, they were acting on their own behalf, and the amendments made to that document were presumably drafted by them. Some aspects of the ADCC are not clearly pleaded, perhaps because the Andersons are now acting without legal assistance. I have taken that fact into account in assessing their pleading for the purposes of the Application. However, I should mention that Mr Garnsworthy appeared for the Andersons at the hearing of the Application, on a pro bono basis. The Court is always grateful when counsel appear pro bono to assist self‑represented litigants.
The following is a summary of relevant parts of the defence pleaded in the ADCC.

Overview of the ADCC

The Andersons admit that they borrowed the loan amount from Westpac, that they agreed to repay the loan amount in accordance with the terms in the Loan Agreement. They admit that the loan was secured by the Mortgage, and by a mortgage over the Trigg property, that the Loan Agreement and the Mortgage incorporated standard terms and conditions, and the terms of the MOP. They admit that the MOP provided that if the Andersons defaulted on the loan, Westpac could issue a notice of default, and if the default was not rectified, the entire loan amount would become payable, and Westpac would be entitled to sue them for the amount owing and to take possession of the Property.[11] The Andersons also admit that in July 2009 they sold the Trigg property, so that the loan amount was secured by the Mortgage over the Property alone.[12]
[11] ADCC [1A], [2] ‑ [5].
[12] ADCC [6].
The Andersons also pleaded a number of facts to establish the causes of action upon which they rely. The Andersons plead that:
•in 2006 they were the sole directors and shareholders of Orchard Holdings which planned to build an apartment complex in Highgate comprising 28 apartments. Orchard Holdings purchased land for the development;
•in 2007, Orchard Holdings appointed Pro Property Pty Ltd, trading as Coldwell Banker, as its selling agent for the development;[13]
[13] ADCC [3.5].
•Orchard Holdings sought and obtained indicative approval for a finance facility from Westpac for the construction of the apartment complex (the business finance facility). One of the conditions precedent for finance to be made available under that facility was that Orchard Holdings provide Westpac with executed arm's length contracts for the sale of 15 of the 28 apartments in the apartment complex;[14]
[14] ADCC [3.8].
•Orchard Holdings subsequently received contracts of sale for 20 apartments, together with letters from 16 of the purported buyers and a letter from Coldwell Banker claiming to have received deposits for 19 of the sales (the Pre‑Sale Contract Documents);[15]
[15] ADCC [3.10].
•Orchard Holdings passed the Pre‑Sale Contract Documents to Westpac and Westpac gave them to its solicitors, Freehills, for review and advice;[16]
[16] ADCC [3.11].
•Freehills knew or ought to have known that the Andersons were customers of Westpac and directors of Orchard;[17]
[17] ADCC [3.11].
•Freehills provided advice to Westpac, by a letter dated 22 May 2007 (the Freehills letter). In that letter, Freehills indicated that the firm had sighted and reviewed the 20 contracts provided to Westpac, that 15 of those contracts were 'conforming contracts', which appears to have meant that for those contracts, the requirements of the condition precedent for finance had been met, in that the contracts were unconditional, Freehills had sighted the letter from Coldwell Banker, and that that letter confirmed that a deposit was held for each of those contracts;[18]
•the Freehills letter contained implicit representations that the conforming contracts were enforceable, that the Coldwell Banker letter was genuine, that the buyers' letters were genuine, and that Freehills had carried out its review with due care and skill (the Representations);[19]
•the Representations were misleading and deceptive, or likely to mislead or deceive, in that 13 of the conforming contracts were not genuine (because the signatures of the purported purchasers were forgeries, or because the purported purchaser was not a real person or a real entity), because the Coldwell Banker letter was also a forgery and because the buyers' letters were forgeries.[20] (In making those allegations, the Andersons expressly seek to rely on a judgment delivered by Allanson J in Orchard Holdings Pty Ltd v Paxhill Pty Ltd as trustee for Paxhill Trust trading as Property People[21] (the Orchard Holdings decision). That decision is discussed further below);
•the conforming contracts could not have been enforced in any event because they failed to comply with the requirements of pt V of the Strata Titles Act 1985 (WA) (which deals with protection of purchasers of strata title lots), and the Representations were misleading and deceptive on that account too;[22]
•Freehills did not carry out its review of the Pre‑Sale Contract Documents with due care and skill having regard to the duty of care which the Andersons allege Freehills owed to them. The Andersons say that that duty of care existed because it was reasonably foreseeable that they would rely on Freehills' review of the Pre‑Sale Contract Documents.[23] The Andersons say that, on account of this failure by Freehills also, the Representations were misleading and deceptive;
•Westpac provided the Freehills letter to Orchard Holdings, and as a result to the Andersons, and consequently, Westpac made the Representations to the Andersons;[24]
•in the alternative, Freehills made the Representations to the Andersons because Freehills knew or ought to have known that the Andersons were customers of Westpac, and that Westpac would provide a copy of the Freehills letter to the Andersons, or would repeat the Representations to the Andersons;
•in making the Representations to the Andersons, Freehills were acting on behalf of Westpac, for the purposes of s 84(2) of the TPA,[25] or alternatively, Westpac was knowingly concerned in, or party to, the making of the Representations, within the meaning of s 75B of the TPA, in that it knew or ought to have known that the Andersons would rely on the Representations and would suffer loss and damage if the Representations were false.[26]

The Andersons' reliance on the Representations

[18] ADCC [3.13].

[19] ADCC [3.14].

[20] ADCC [3.18(a) and (c)].

[21] Orchard Holdings Pty Ltd v Paxhill Pty Ltd as trustee for Paxhill Trust trading as Property People [2012] WASC 271.

[22] ADCC [3.18(b)].

[23] ADCC [3.18(f)].

[24] ADCC [3.15].

[25] ADCC [3.16(a) and (b)].

[26] ADCC [3.16(c)].

The Andersons plead that:
•they acted in reliance on, and were induced by, the Representations, so that they caused Orchard Holdings to draw down on the business finance facility with Westpac (as a result of which Orchard Holdings incurred a liability for which the Andersons were themselves liable, pursuant to a guarantee and indemnity each of them had granted to Westpac);
•in addition, they also relied on the Representations in deciding to purchase the Property, to enter into the Loan Agreement with Westpac, and to grant the Mortgage over the Property.[27] (It is not at all clear from the pleading how the Representations have any relationship at all to the Andersons' decision to purchase the Property and enter into the Loan Agreement.)
[27] ADCC [3.17(c)].
The Andersons then go on to plead three causes of action against Westpac and against Freehills (despite the fact that Freehills is not named as a party to either Westpac's action or to the counterclaim).

The s 52 claim

The Andersons allege that by virtue of their misleading and deceptive nature, the Representations were made in contravention of s 52 of the TPA (the s 52 claim).[28]
[28] ADCC [3.20].
The Andersons allege that they suffered loss and damage by reason of Westpac's contravention of s 52 of the TPA. The basis for that claim is that had Orchard Holdings, and they, not been misled into believing that the requisite number of contracts had been achieved, Orchard Holdings would have achieved an equivalent number of genuine sales prior to June 2007, and the proceeds of those sales would have extinguished or reduced the indebtedness of Orchard Holdings itself, and of the Andersons, to Westpac.
In addition, the Andersons allege that if Orchard Holdings had not been able to achieve the equivalent number of genuine sales, they would not have purchased the Property and entered into the Loan Agreement, and incurred the interest, costs and expenses that they did.[29]

The negligence claim

[29] ADCC [3.20].

Alternatively, the Andersons allege that Westpac owed a duty of care to them to exercise reasonable care in making the Representations so as not to cause them economic harm. They allege that in breach of that duty, Westpac made the Representations to them.
In the alternative, and in the event that Westpac did not owe such a duty or did not breach that duty of care, the Andersons allege that Freehills owed a duty of care to them to exercise reasonable care in making the Representations so as not to cause economic harm to them, in that Freehills knew or ought to have known that Westpac would provide a copy of the Freehills letter, or repeat the Representations, to the Andersons, and it was reasonably foreseeable that the Andersons would suffer loss and damage if Freehills failed to exercise reasonable care in making the Representations.
They allege that Freehills breached that duty of care by making the Representations to the Andersons, but they allege that Westpac was vicariously liable for that breach on the basis that Freehills was acting as Westpac's agent and with its authority.[30]
[30] ADCC [3.23].
The Andersons allege that in consequence of this breach of duty, they suffered the same loss and damage as they claim in respect of the alleged breach of s 52 of the TPA.

The statutory unconscionability claim

Alternatively, the Andersons allege statutory unconscionable conduct on Westpac's part. They claim that Westpac is acting unconscionably in seeking to enforce the terms of the Loan Agreement and the Mortgage because in the circumstances pleaded in the Statement of Claim, Westpac was in a superior bargaining position to them. The Andersons claim that Westpac is charging them interest at penalty rates which are substantially in excess of Westpac's costs of funds and its overheads, that Westpac has capitalised interest over a lengthy period of time, and that neither course is reasonably necessary for the protection of Westpac's legitimate interests.[31] They claim that that conduct was a breach of s 12CC of the ASIC Act[32] and s 51AC of the TPA.
[31] ADCC [3.25].
[32] See footnote 1.
The Andersons claim that to the extent that the Loan Agreement and the Mortgage are enforceable against them, they are entitled to an order under s 12GM of the ASIC Act or s 87 of the TPA to the effect that those instruments are void. Alternatively, the Andersons seek an order to the effect that Westpac cannot recover compound interest at penalty rates from them, and an order varying the terms of the Loan Agreement and the Mortgage so as to give effect to that order.

The defence in relation to the relief sought by Westpac

The Andersons do not admit the variations of the Loan Agreement pleaded by Westpac. The Andersons admit that Westpac served them with the Notice of Default, but deny that they were in default, and state that by reason of the claims made (that is, the three causes of action set out above) no monies were owing at the date the Notice of Default was given, that the Notice of Default was of no force or effect, and that Westpac is not entitled to take any further steps against them in respect of the Notice pursuant to the Loan Agreement or the Mortgage.[33]
[33] ADCC [14].
The Andersons deny that they failed to rectify the default specified in the Notice of Default, or to repay the loan amount, and deny that the loan amount is now due and payable, or that Westpac is entitled to possession.[34]
[34] ADCC [15].
Finally, there is a very odd pleading in ADCC [16] to the effect that if the Andersons are liable to Westpac, then the Andersons and Freehills are concurrent wrongdoers within the meaning of s 5AI of the Civil Liability Act 2002 (WA) (CLA) and s 87CB of the Competition and Consumer Act 2010 (Cth) (CCA). The Andersons claim that by virtue of s 5AK(1) of the CLA or s 87CD of the CCA, their liability to Westpac should be limited to an amount reflecting the extent of their responsibility, as compared with Freehills, for any amount awarded to Westpac.[35]
[35] ADCC [16] ‑ [17].
The latter claim is clearly wholly misconceived. The claim is not an apportionable claim, and Freehills is not joined as a defendant. No question of apportionment could arise.

The counterclaim

In the counterclaim, the Andersons simply repeat the paragraphs of the defence in which they plead their allegations of a breach of s 52 of the TPA, duties of care, and statutory unconscionability.[36] The Andersons allege that they have suffered loss and damage as a result of Westpac's conduct as pleaded in those paragraphs. That loss is described as the loss of the dividend which Orchard Holdings would otherwise have declared between 2009 and 2016, and which the Andersons claim would have been in the sum of $8.4 million.[37]

Why leave to proceed, or an extension of time, should be granted to Westpac to bring the Application
[36] ADCC [20].
[37] ADCC [21].

The Application was filed on 17 May 2016. Westpac's application for summary judgment on its claim is made pursuant to O 14 r 1 RSC. Its application for summary judgment to dismiss the counterclaim is brought pursuant to O 16 r 1 RSC.
An application for summary judgment by a plaintiff must be brought within 21 days of the appearance or any later time by leave of the Court.[38] The same requirement applies to an application for summary judgment by a defendant (including a defendant by counterclaim).[39]
[38] RSC O 14 r 1(1).
[39] RSC O 16 r 1(1).
The Andersons entered an appearance to Westpac's action on 5 July 2013, filed their defence on 21 February 2014 and filed the ADCC on 9 March 2016. It follows that both of Westpac's applications for summary judgment were filed out of time, and that it requires the leave of the Court to proceed with them.
Westpac's application to strike out the ADCC is made pursuant to O 20 r 19(1)(a) ‑ (d) RSC. A strike out application under O 20 r 19(1) must also be brought within 21 days of service of the relevant pleading.[40] Westpac admits its strike out application was also filed outside that time limit. It requires an extension of time in which to bring that application also.
[40] RSC O 20 r 19(3).
In so far as Westpac seeks relief pursuant to the Court's inherent jurisdiction to control its own process, on the basis that some of the claims in the ADCC constitute an abuse of the process of the Court, no time limit applies to that part of the Application.
The 21 day limit for applications for summary judgment clearly reflects a policy view that such applications should be brought at an early stage in the proceedings, and before too much expense has been incurred.[41] If there is a delay, it must be explained,[42] and it is up to the applicant to show that the delay in bringing the application was justifiable in the circumstances.[43] However, the Court clearly has a broad discretion as to whether to grant leave to apply out of time. Clearly the prospects of the application will be relevant. To proceed to trial, with the expense that that may incur, when there is no defence to an action, or where an action pursued by counterclaim has no prospect of succeeding, would of itself be contrary to modern principles of case management. Prejudice to the other party, occasioned by the delay in bringing the application, will clearly be relevant.[44]
[41] Deputy Commissioner of Taxation v Heaton (1997) 35 ATR 450, 453 (Sanderson M); Smith v Town and Country Bank (Unreported, WASCA, Library No 970716, 18 December 1997) 55 ‑ 56 (Malcolm CJ, Kennedy J & Owen JJ agreeing).
[42] Newmont Power Pty Ltd v Barrick Gold of Australia Ltd [2008] WASCA 74 [25] (McLure JA, Pullin JA agreeing), affirming Barrick Gold of Australia Ltd v FL Smidth Inc [2007] WASC 186 [10] (Templeman J).
[43] Smith v Town and Country Bank (Unreported, WASCA, Library No 970716, 18 December 1997) 56; Jacka Nominees Pty Ltd (In liq) v Edwards Karwacki Smith & Co Pty Ltd (Unreported, WASC, Library No 920512, 12 October 1992) 9 (Adams M).
[44] Deputy Commissioner of Taxation v Heaton (1997) 35 ATR 450, 453.
The reasons for the delay in bringing the summary judgment and strike out applications were set out in the affidavit of Tamara Strack sworn 17 May 2016. In short, Westpac delayed bringing the Application until a complaint made to the Financial Services Ombudsman in 2014 was resolved, until after an attempt at mediation in 2015, and until after its solicitors had conferred with the Andersons in respect of the proposed ADCC, which was not filed until March 2016. Counsel for Westpac submitted that there had been no interlocutory steps taken beyond the filing of pleadings and that the Andersons can point to no prejudice arising from the delay in bringing the applications.
I am satisfied that to the extent that it is required, Westpac should have leave to proceed out of time, or an extension of time, as the case requires. The Andersons submitted that they would suffer the prejudice of losing their opportunity to defend the action, along with their house, if Westpac were granted an extension of time to bring the Application, and succeeded. I am unable to accept that argument. Self‑evidently, that prejudice is one which would flow from the granting of summary judgment or a strike out of the ADCC, and not from the delay in bringing the applications for summary judgment and strike out per se.
The delay has been adequately explained by Westpac. In all of the circumstances, the delay was not unreasonable. No prejudice has been suffered by the Andersons as a result of Westpac's delay in bringing the applications for summary judgment, and to strike out the pleading. And for the reasons which follow, those applications have merit.

Westpac's applications for summary judgment - the evidence on which it relied, and the evidence adduced by the Andersons in response

An application for summary judgment by a plaintiff pursuant to O 14 r 1(1) must be supported by an affidavit verifying the facts on which the claim is based and stating that there is no defence to that claim.[45] The defendant is entitled to show cause against the application by affidavit or otherwise to the satisfaction of the Court.[46]
[45] RSC O 14 r 2(1).
[46] RSC O 14 r 4(1)
Similarly, on an application by a defendant to a counterclaim for summary judgment on the counterclaim, pursuant to O 16 r 1, the defendant is required to file an affidavit verifying the facts upon which the application is based.[47] The plaintiff is entitled to file an affidavit to show cause against the application.[48]
[47] RSC O 16 r 1(2).
[48] RSC O 16 r 2.
In support of its application for summary judgment on its action, Westpac relied on the affidavit of Domenico Cannalonga sworn 6 May 2016, and the affidavit of Phillip Chris Botsis affirmed 10 May 2016. Mr Cannalonga is an officer of Westpac. Mr Botsis is a process server who deposed to service on the Andersons of a Notice of Default dated 19 April 2013.
Westpac also relied on Mr Cannalonga's affidavit in support of its application for summary judgment on the counterclaim.
The Andersons filed an affidavit sworn by Mr Anderson on 31 May 2016. It merely raised objections to some aspects of the Application, and annexed copies of some documents referred to in the ADCC, including the Freehills letter and a copy of an invoice from Freehills to Orchard Holdings, in respect of work performed for Westpac (the purpose of which was not apparent). Mr Anderson's affidavit did not depose to any facts relevant to resisting the Application in so far as it alleged an abuse of process, nor, for that matter, did Mr Anderson depose to any facts to demonstrate that the Andersons have a defence to Westpac's action for possession.
Although Mr Anderson had filed a witness statement in late 2015, counsel for the Andersons confirmed that the only evidence that the Andersons relied upon in the summary judgment application was the affidavit filed by Mr Anderson.[49]

Why it would be an abuse of the process of the Court for the Andersons to litigate the case pleaded in the ADCC, apart from the statutory unconscionability claim
[49] ts 80.

Westpac seeks summary judgment in respect of the counterclaim, or alternatively a permanent stay of the counterclaim in the inherent jurisdiction of the Court. The basis for Westpac's claim on abuse of process grounds is that the Anderson's case overlaps substantially with the case advanced by the Andersons in the Orchard Holdings decision, albeit that they now advance the case against a different defendant than in the Orchard Holdings decision.
However, counsel for Westpac acknowledged that one aspect of the Andersons' present claims was not raised in the Orchard Holdings action, namely their claim in relation to statutory unconscionability.[50] Consequently, Westpac advances its abuse of process ground in respect of the balance of the ADCC apart from those paragraphs. For ease of reference I will refer to the remaining paragraphs in the ADCC (to which the abuse of process claim pertains) as the Subject Pleadings.

The application for summary judgment under O 16 r 1 RSC

[50] ts 28.

A defendant to an action may apply to the Court for summary judgment pursuant to O 16 r 1 RSC. Although Westpac is a defendant to the counterclaim, it is open to it to bring its application for summary judgment on the counterclaim pursuant to O 16 r 1 RSC.[51]
[51] Lill v Merchant Capital (WA) Ltd (1996) 15 WAR 536, 550 (Ipp J); see also WA Country Builders Pty Ltd v Premium Coastal Property Pty Ltd [2012] WASC 236 [10] ‑ [11] (Sanderson M).
Order 16 r 1 RSC requires the Court to be satisfied either that the action is frivolous or vexatious, or that the defendant has a good defence on the merits, or that the action should be disposed of summarily.
The principles in relation to the determination of applications for summary judgment are well established. A party should not ordinarily be denied the opportunity to have his or her case determined following trial, and for that reason, the jurisdiction to grant summary judgment should be reserved for the clearest of cases, where there is a high degree of certainty about the ultimate outcome of the action if it were allowed to go to trial.[52] The question is whether, on the material before the Court, it has been demonstrated that the plaintiff's action should not be permitted to proceed to trial because it is apparent that it must fail.[53] However, that does not mean that summary judgment will be given only where the case is so hopeless as not to require argument. Extensive argument may be necessary to demonstrate that a party's case is so clearly untenable that it cannot possibly succeed.[54]
[52] Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57] (Gaudron, McHugh, Gummow & Hayne JJ); Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [46] (Gleeson CJ, Gummow, Hayne & Crennan JJ); Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [24] (French CJ & Gummow J); Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99 (the Court); Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, 602 ‑ 603 (Mason CJ, Deane & Dawson JJ).
[53] Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, 602.
[54] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, 130 (Barwick CJ).
The defendant bringing the summary judgment application bears the legal onus of establishing that there is no serious question to be tried on any cause of action raised by the plaintiff.[55] If a defendant's affidavit establishes the basis for the summary judgment application, the plaintiff may assume an evidentiary onus to show why summary judgment should not be given. In other words, the plaintiff needs to show, on the evidence, that there exists a 'triable issue'.[56] In doing so, the affidavit must 'condescend upon particulars' - that is, it must set out facts which establish that it is reasonable to permit the plaintiff to pursue the action.[57]
[55] Anderson v Effexseven (1999) 10 ANZ Ins Cas 61‑424, 74,757 (Parker J, Owen J agreeing).
[56] See Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109, 110 (Brinsden J) in relation to applications under O 14 r 1 RSC; see also Bankwest (a division of CBA) v Mann [2015] WASC 187 [46]; HSBC Bank Australia Ltd v Mavaddat [2015] WASC 153 [26] (unsuccessfully appealed in Mavaddat v HSBC Bank Australia Ltd [No 2] [2016] WASCA 94); Gel Custodians Pty Ltd v Dewar [2014] WASC 177 [25]; Hee v Nyoni [2014] WASC 44 [25]; Wright v Wright [2002] WASC 30 [19].
[57] Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109, 113 (Brinsden J), citing Wallingford v Mutual Society (1880) 5 App Cas 685, 704 (Lord Blackburn).
While the plaintiff may bear that evidentiary onus, the defendant retains the legal onus of demonstrating that there is no real question to be tried, sufficient to warrant the grant of summary judgment.[58]
[58] Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18, 24 (Murray J).
In support of Westpac's claim that the pleadings in the ADCC constituted an abuse of process, Mr Cannalonga annexed a copy of the statement of claim in the Orchard Holdings action. In addition, counsel for Westpac referred extensively to the findings made by Allanson J in the Orchard Holdings decision. As I have already observed, Mr Anderson's affidavit did not set out any facts to demonstrate that the Subject Pleadings did not constitute an abuse of process.

Abuse of process

It is well established that the Court has an inherent or implied power to prevent its procedures from being abused.[59]
[59] Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93 [4] (Buss JA) and the cases there cited.

What will constitute an abuse of process is incapable of being described exhaustively.[60] However, a recognised category of abuse of process includes successive proceedings which cause oppression, or are likely to be oppressive, to a party because they constitute an attempt by a litigant to run the same case again.[61]
[60] Michael Wilson and Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [89] (Gummow A‑CJ, Hayne, Crennan & Bell JJ); Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19, 74 ‑ 75 (Gaudron J); Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93 [5] (Buss JA), [119] (Murphy JA, Chaney J agreeing).
[61] Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 393 (Mason CJ, Deane & Dawson JJ); Rogersv The Queen[1994] HCA 42; (1994) 181 CLR 251, 286 ‑ 287 (McHugh J); Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93 [8] (Buss JA), [118] ‑ [119] (Murphy JA, Chaney J agreeing).
It will also be an abuse of process for a party to make a claim in later proceedings which is based wholly or substantially on the facts of a claim made by the same party in earlier proceedings, such as by pursuing the same claim against a different defendant.[62] The principle was summarised in Reichel v Magrath[63] by Lord Halsbury LC in the following terms:
I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again …
I believe there must be an inherent jurisdiction in every Court of Justice to prevent such an abuse of its procedure.
[62] See, eg, Reichel v Magrath (1889) 14 App Cas 665 and Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198 [27] ‑ [28].
[63] Reichel v Magrath (1889) 14 App Cas 665, 668 (Lord Halsbury LC).
An abuse of process will arise not only where a plaintiff pursues the same action against a different defendant, but may even arise where there is no precise identity of either party.[64]
[64] Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93 [120] (Murphy JA). See also MCC Proceeds Inc v Lehman Bros International (Europe) [1998] 4 All ER 675 esp at 695 (Mummery LJ, Pill LJ agreeing).
Further, not only will it be an abuse of process to attempt to re‑litigate an issue which has, in substance, been determined in earlier proceedings, but it will also be an abuse if a party attempts to litigate an issue which should have been raised and determined in earlier proceedings.[65] This category of abuse of process has been described as an extension of Anshun estoppel.[66]
[65] Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93 [11] (Buss JA) and the cases there cited.
[66] Michael Wilson and Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [94]; Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93 [125] ‑ [126] (Murphy JA, Chaney J agreeing).
Whether a subsequent action constitutes an abuse of process must be assessed by reference to guiding considerations of 'oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice'.[67] Among the matters which may be relevant to that issue will be:
(a)The importance of the issue in and to the earlier proceedings, including whether it is an evidentiary or an ultimate issue;
(b)The opportunity available and taken to fully litigate the issue;
(c)The terms and finality of the finding as to the issue;
(d)The identity between the relevant issues in the two proceedings;
(e)Any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceeding;
(f)The extent of the oppression and unfairness to the other party if the issue was relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and
(g)An overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.[68]
[67] State Bank of New South Wales Ltd v Alexander Stenhouse Ltd (1997) Aust Torts Reports 81-423, 64,089 (Giles CJ Comm Div); Kermani v Westpac Banking Corp [2012] VSCA 42; (2012) 36 VR 130 [97] (Robson AJA, Neave & Harper JJA agreeing); Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93 [134] (Murphy JA, Chaney J agreeing).
[68] State Bank of New South Wales Ltd v Alexander Stenhouse Ltd (1997) Aust Torts Reports 81-423, 64,089 (Giles CJ Comm Div); Kermani v Westpac Banking Corp [2012] VSCA 42; (2012) 36 VR 130 [97] (Robson AJA, Neave & Harper JJA agreeing); Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93 [134] (Murphy JA, Chaney J agreeing).
Furthermore, the Court should consider whether there was reasonable justification for the second proceeding based on legitimate considerations of convenience, cost or the like.[69]
[69] Kermani v Westpac Banking Corp [2012] VSCA 42; (2012) 36 VR 130 [97] (Robson AJA, Neave & Harper JJA agreeing); Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93 [134] (Murphy JA, Chaney J agreeing).
In my view, there is no doubt that in so far as the Andersons seek to litigate the claims set out in the Subject Pleadings, that constitutes an abuse of the process of the Court. In order to explain why that is so, it is necessary to refer to salient aspects of the plaintiffs' pleading in the Orchard Holdings action, and the reasons of Allanson J in the Orchard Holdings decision.

The Statement of Claim filed by the plaintiffs in the Orchard Holdings action

A copy of the statement of claim filed by the plaintiffs in the Orchard Holdings action was annexed to Mr Cannalonga's affidavit.[70]
[70] Further amended statement of claim dated 26 October 2011, affidavit of Domenico Cannalonga at annexure DC11.
The plaintiffs in the Orchard Holdings action were Orchard Holdings and the Andersons. The first and second defendants were two real estate agencies which had acted as the selling agents for Orchard Holdings in relation to the sale of the apartments. The third defendant was Mr Richard Moody, who was employed as a sales representative by each of those real estate agencies.
In the Orchard Holdings action, the plaintiffs pleaded that:
•Orchard Holdings entered into contracts for the purchase of land in Highgate for the purpose of constructing the apartment complex.
•Orchard Holdings entered into selling agency agreements with the first and second defendants in March 2006 and February 2007 respectively. The third defendant was an employee of the first defendant and, subsequently, the second defendant and acted on behalf of each defendant.
•In April 2007, Orchard Holdings obtained indicative approval for a business finance facility from Westpac for the construction of the apartment complex. One of the conditions precedent to that finance facility was that Orchard Holdings provide Westpac with executed arm's length contracts for the sale of 15 apartments in the apartment complex.
•Between September and December 2006 and between February 2007 and May 2007, the first and second defendants respectively, each acting through the third defendant, prepared and presented to Orchard Holdings a number of offers by third party purchasers to purchase individual apartments in the apartment complex. On each occasion, the defendants represented that the offer was a genuine offer made by a real person.
•Orchard Holdings relied upon those representations and accepted a number of those offers to purchase, and consequently did not attempt to market and sell the apartments to any other purchasers.
•The second defendant also represented to Orchard Holdings that it had received from the first defendant the transfer of monies into its trust account comprising the deposits paid in respect of the contracts for sale claimed to have been achieved by the first defendant, and that the second defendant was holding in its trust account deposits on the purchase price for the sales contracts said to have been achieved by the second defendant for the apartment complex.
•The second defendant, through the third defendant, obtained letters of acknowledgment signed by each of the purchasers of the apartments and in doing so, the second defendant represented that each purchaser referred to in each letter of acknowledgment was a genuine purchaser and had signed the letter of acknowledgment in each of the contracts, and that those contracts were genuine contracts.
•In about May 2007, in reliance on the representations, Orchard Holdings presented Westpac with 20 contracts for the sale of 20 apartments in the proposed apartment complex, which were considered to satisfy the pre‑sales condition precedent in the business finance facility. Westpac then made the finance available to Orchard Holdings for the carrying out of the development and construction of the apartment complex and Orchard used the finance provided by Westpac to carry out the development and construction of the apartment complex.
•The plaintiffs pleaded that the representations made by the defendants were misleading and deceptive, or likely to mislead or deceive, in that the purported purchasers were not, in fact, real persons and that the contracts were not genuine contracts. The plaintiffs pleaded that the conduct of the first and second defendants was conduct which breached s 52 of the TPA and that the conduct of the third defendant was conduct engaged in on behalf of the first and second defendant respectively within the meaning of s 84(2) of the TPA.
•The plaintiffs pleaded that Orchard Holdings suffered loss and damage by reason of those contraventions, in that had the plaintiffs not been misled into believing that the apartments had been sold, the plaintiffs would have achieved an equivalent number of sales of similarly priced apartments from genuine purchasers prior to June 2007.
•In the alternative, the plaintiffs pleaded that the third defendant made each of the representations attributed to the first and second defendants, and Orchard Holdings relied on those representations, that those representations were misleading and deceptive conduct for the purposes of s 9 of the Fair Trading Act 2010 (WA) (FTA) and that Orchard Holdings suffered loss and damage by reason of that contravention. The plaintiffs also pleaded that the third defendant was knowingly concerned in, or party to, contraventions of the TPA by the first and second defendants.
•A number of other claims were made by the plaintiffs in the Orchard Holdings action. Those claims included claims by the Andersons against the defendants, under s 52 of the TPA and s 9 of the FTA. The Andersons pleaded that they acted in reliance on the representations made by the first and second defendants and by the third defendant, and were induced by those representations to enter into a guarantee and indemnity to guarantee the liabilities and obligations of Orchard Holdings to Westpac, and to purchase the Property and grant the Mortgage over the Property. The Andersons claimed that they had suffered loss and damage by reason of those contraventions.
•The plaintiffs, including the Andersons personally, claimed damages against the defendants under s 82 of the TPA and s 79 of the FTA.
•In so far as the Andersons personally claimed to have suffered loss and damage, they claimed they borrowed $3.8 million from Westpac to purchase the property, and that had they known that the contracts were not genuine, Orchard Holdings would have achieved sales of an equivalent number of apartments of similarly priced apartments prior to June 2007, and would have sold the remainder of the apartments in the complex between December 2008 and March 2009. The plaintiffs claimed that in that event Orchard Holdings would not have incurred interest and other costs and expenses on the business finance facility for the development, and the Andersons would have repaid the loan amount for the Property and as a result, the Andersons would not have incurred the interests and other costs which they had incurred, and were continuing to incur, on the loan amount in respect of the Property.

The Orchard Holdings decision

In the Orchard Holdings decision, Allanson J found that each of the first and second defendants (the real estate agencies) was liable, as principal, for a breach of s 52 of the TPA in relation to the representations made by the third defendant, Mr Moody, of the fictitious offers to purchase apartments to Orchard. Allanson J also found that the third defendant, Mr Moody, was liable for that conduct on the basis that he was knowingly concerned in the contravention of s 52 of the TPA. Allanson J held that there was no doubt that the third defendant, Mr Moody, engaged in 'a scandalous deception of the plaintiffs over a protracted period'.
His Honour held that when Mr Moody presented most (but not all) of the fictitious offers to purchase the apartments, he was acting within the scope of his authority as an employee of each of the first and second defendants respectively. However, his Honour was not satisfied that the letters of acknowledgment presented by Coldwell Banker, through Mr Moody, to Orchard Holdings, were provided within the scope of Mr Moody's actual authority and there was no evidence of any representation by Coldwell Banker that he had authority to do that. Accordingly, he found that the representations said to have been constituted by the provision of the letters of acknowledgment were not conduct for which Coldwell Banker was liable. However, those representations constituted breaches of the FTA, for which Mr Moody was liable.
Allanson J made findings in relation to the finance provided by Westpac for the apartment complex project, and the pleadings in the ADCC reflect those findings. They included findings as to the conditions precedent which pertained to the provision of the business finance facility, Freehills' review of the pre‑sale contracts upon which Westpac had sought its advice, the terms of the advice in the Freehills letter, a finding that Orchard Holdings obtained finance through the business finance facility once Westpac was satisfied that the conditions precedent had been met, and a finding that the Andersons provided guarantees for Orchard Holdings' liability to Westpac.
Allanson J found that Orchard Holdings relied upon, and was induced by, the representations made by Mr Moody that it had concluded contracts with genuine third party offerors and that, but for Mr Moody's deception, it would have attempted to sell sufficient apartments in the period between November 2006 and May or June 2007 to satisfy the condition precedent for the business finance facility. His Honour was satisfied that the presentation of the contracts to Westpac in support of the application for the business finance facility clearly showed acceptance by Orchard Holdings that those contracts were genuine. His Honour also accepted that in the period before those contracts were submitted to Westpac, the plaintiffs acted on the basis that the apartments had been sold.[71]
[71] Orchard Holdings Pty Ltd v Paxhill Pty Ltd as trustee for Paxhill Trust trading as Property People [2012] WASC 271 [316].
Allanson J awarded damages of $450,000, for which he held the first defendant and third defendant jointly and severally liable for $225,000 and the second defendant and third defendant jointly and severally liable for $225,000. In addition, his Honour awarded a further amount of $67,573.14 by way of interest for the period between when the various losses were incurred and the date of judgment.[72] His Honour made that apportionment in response to claims by the first and second defendants that their liability should be limited, pursuant to s 5AK(1) of the CLA and s 87CD of the TPA, to an amount reflecting that proportion of the damage or loss claimed by the plaintiffs that the Court considered just, having regard to the extent of each defendant's responsibility for the damage or loss. His Honour was satisfied that no differentiation could be made between the first and second defendants by reference to the degree of departure from the requirements of s 52 of the TPA, nor that any distinction could be drawn between them with respect to the relative importance of their acts in causing the plaintiffs' loss. His Honour concluded that the just apportionment between the parties recognised the joint liability of Mr Moody with each of his employers and with each of the first and second defendants equally responsible with the other.[73]
[72] See Pro Property Pty Ltd v Orchard Holdings Pty Ltd [2013] WASCA 283 [26] ‑ [28]. (This was an appeal against the decision of Allanson J in respect of the costs of the Orchard Holdings action. The cited paragraphs set out the Court of Appeal's recitation of the relevant factual background.)
[73] Orchard Holdings Pty Ltd v Paxhill Pty Ltd as trustee for Paxhill Trust trading as Property People [2012] WASC 271 [339] ‑ [348].
Allanson J also made findings in relation to the decision by the Andersons to apply for the Bridging Option Home Loan and to grant the Mortgage over the Property. He found that the decision by the Andersons to borrow additional funds to buy the Property was
materially influenced by Mr Anderson's belief that their financial position would permit them to do so without the need for a continuing mortgage, or at least a continuing mortgage of substantial size. Mr Anderson's calculations in June 2008 were wrong in relation to how much he would receive, and when, from the sale of the house in Trigg and from the sale of the [apartments]. His thinking was affected by Mr Moody's deceit. That deceit affected not only his understanding of the funds that would be available from pre‑sales in early 2009, but his expectation about how easily the remaining apartments would be sold.[74]
[74] Orchard Holdings Pty Ltd v Paxhill Pty Ltd as trustee for Paxhill Trust trading as Property People [2012] WASC 271 [253].
In relation to the loss claimed by the Andersons in respect of the Property, Allanson J noted that the plaintiffs' claim was based on the premise that all of the apartments would have sold by December 2009, by which time Orchard Holdings would have repaid its business finance facility for the apartment complex, leaving a surplus of funds sufficient to discharge the loan in respect of the Property, with the result that the plaintiffs would have repaid the loan amount under the Loan Agreement by that date. On that basis, the plaintiffs claimed that the interest payments and costs from December 2009 to the date of trial would not have been incurred by the Andersons. However, his Honour found that the plaintiffs had not proved that part of their case. His Honour was satisfied that a substantial part of the Andersons' inability to repay the loan amount in respect of the Property resulted from their failure to sell the Trigg property at around the price they had originally expected.[75]

Why pursuit by the Andersons of most of the ADCC is an abuse of process

[75] Orchard Holdings Pty Ltd v Paxhill Pty Ltd as trustee for Paxhill Trust trading as Property People [2012] WASC 271 [410] ‑ [411].

To the extent that the Andersons rely on the Subject Pleadings, their case is an abuse of process for the following reasons.
First, as a comparison of the Subject Pleadings, the plaintiffs' statement of claim in the Orchard Holdings action and of the Orchard Holdings decision demonstrates, there is clearly a substantial overlap between both the facts and the issues pleaded in the Subject Pleadings and the facts and issues determined in the Orchard Holdings action. The facts and issues in respect of which there is an overlap were, and are, integral rather than peripheral to the case now advanced by the Andersons in the Subject Pleadings.

The factual overlap covers the facts concerning the business finance facility, and the conditions precedent for the finance Westpac agreed to make available under that facility, the apartment complex development, the forgeries in the Pre‑Sale Contract Documents provided to Westpac, Freehills' role in reviewing that documentation, its advice in the Freehills letter, the provision of finance to Orchard, the Andersons' purchase of the Property, their loan from Westpac in accordance with the Loan Agreement, and the Mortgage.
Counsel for the Andersons submitted that there was no correspondence between the parties to this action and the Orchard Holdings action.[76] But as I have already pointed out, an abuse of process may arise even in cases where there is no identity of parties in the subsequent action as compared with the earlier action. What is also significant is that there is a very substantial duplication in the issues raised for determination in connection with the causes of action alleged in the Subject Pleadings, as compared with the issues determined in connection with the causes of action pleaded in the Orchard Holdings action. The differences are simply that the Andersons now only advance a case personal to them and Westpac is now the defendant of the action, rather than the real estate agencies and Mr Moody.
[76] ts 86.
Counsel for the Andersons submitted that while there was a common substratum of facts between the Orchard Holdings action and the claims now made by the Andersons, that that did not necessarily lead to the conclusion that there was an abuse of process.[77] He submitted that in order to determine the facts and issues in the counterclaim it would not be necessary to repeat a large amount of the evidence that was led in the Orchard Holdings action. Rather, he submitted, much of that evidence could be the subject of an agreed set of facts. In relation to the issue of the Andersons' reliance on the representations now said to have been constituted by the Freehills' letter, for example, counsel for the Andersons submitted that all of the evidence for the Andersons' claim (except, presumably, the Andersons' evidence that they relied on Freehills' or Westpac's representations) was before the Court in Orchard Holdings and that the only difference in the present case would be 'the legal argument. … None of the facts would change'.[78] I am unable to accept that submission. It was premised on the assumption that at trial, Westpac would be willing to proceed on the basis of agreed facts as found in the Orchard Holdings action. That seems highly unlikely in the context of a case where the facts concerning the conduct of Westpac and Freehills are now said to take on an entirely different complexion from that which they were said to have in the Orchard Holdings action.
[77] ts 91.
[78] ts 94.
Secondly, in the Orchard Holdings action, the Andersons clearly had the opportunity to fully litigate any claims they had which were said to be referrable to the conduct of Mr Moody, and its consequences for other parties including Westpac and Freehills. Their claims were the subject of a very lengthy trial before Allanson J.
Thirdly, given the factual overlap and the similarity in the issues raised, it was wholly unreasonable for the Andersons not to have joined Westpac as a defendant in the Orchard Holdings action if they sought to attribute liability for their losses to Westpac as well as to the defendants to that action. Counsel for the Andersons submitted that Westpac could not have been a party to the Orchard Holdings action 'because to do so would have involved a separate claim'[79] and 'would have complicated the whole proceedings even more'.[80] I do not accept that submission. Adding Westpac as a party would, no doubt, have added a little to the complexity of the action, but not significantly so in the circumstances.
[79] ts 86.
[80] ts 86.
Fourthly, some of the Subject Pleadings are inconsistent with findings made by Allanson J, and represent an attempt to re‑litigate issues which his Honour has already determined. This is most pronounced in relation to the identification of the representations which were relied upon by the Andersons which are said to have caused their loss, and in relation to the loss which they claim to have suffered.
In so far as reliance on the Representations is concerned, in the Orchard Holdings action the Andersons pleaded that they relied on the misleading and deceptive representations made by the defendants when they gave guarantees to Westpac for the liabilities of Orchard Holdings and when they purchased the Property and granted the Mortgage to Westpac in respect of the Property. In contrast, the Andersons now claim that it was in reliance on the Representations made by Westpac or Freehills that they caused Orchard Holdings to draw down on the finance facility (and thereby allowed Orchard Holdings to incur a liability under the business finance facility), and that they purchased the Property, entered into the Loan Agreement and granted the Mortgage to Westpac over the Property.
Furthermore, that pleading is inconsistent with Allanson J's finding (at [70] above) that Orchard Holdings, and the Andersons, relied only on Mr Moody's representations that the contracts were genuine. That finding leaves no room for a claim that the Andersons also relied on misleading and deceptive representations (to the same effect) by either Westpac or Freehills.
Counsel for the Andersons also effectively submitted that the claims now advanced by the Andersons were not inconsistent with Allanson J's findings as to reliance because the focus of the Orchard Holdings decision was on the position of Orchard Holdings, whereas in the Subject Pleadings the focus of the action is on the Andersons' claims.[81] That submission cannot be accepted. It ignores the fact that his Honour made findings specifically directed to the Andersons' reliance on Mr Moody's representations.
[81] ts 89.
Turning to loss and damage, the Subject Pleadings are inconsistent with the claim the Andersons made, and Allanson J's findings, in the Orchard Holdings action. The claim advanced by the plaintiffs in the Orchard Holdings action appears to have been a claim for all loss and damage sustained by Orchard Holdings, and by the Andersons, arising from Mr Moody's deception. The loss and damage the Andersons claimed was that which they suffered by reason of their inability to repay the loan amount under the Loan Agreement, namely the interest they incurred in respect of the Loan Agreement, together with their losses as a result of the sale of the Trigg property. There was nothing whatsoever to indicate that a particular aspect of the Andersons' loss was intended to be carved out of the loss and damage the plaintiffs sought to recover in that case. In my view, the Andersons' present claim for loss and damage simply seeks to re‑litigate the question of their loss which was determined (adversely to them) in the Orchard Holdings decision (see [73] above).
I note that in so far as loss attributable to the Andersons' interest payments under the Loan Agreement is concerned, that part of their claim of loss in the Orchard Holdings action is directly replicated in the Subject Pleadings.[82]
[82] Orchard Holdings Pty Ltd v Paxhill Pty Ltd as trustee for Paxhill Trust trading as Property People [2012] WASC 271 [360]; affidavit of Domenico Cannalonga at annexure DC11, pages 156 ‑ 167; ADCC [3.20(b)(iii)].
Counsel for the Andersons submitted that the loss claimed by the Andersons in this action was of a different kind from the loss they claimed in the Orchard Holdings action. He submitted that the Andersons' claim in the Subject Pleadings is that had Orchard Holdings continued trading, it would have returned a dividend to the Andersons. He submitted that their case now was
not focused on 'had everything gone to plan, then, it wouldn't have been a problem' … what is being put here is had these events not occurred, then Orchard Holdings would have continued trading … and from that trading, results would have flowed, mainly, that as shareholders, we would have received a dividend from that activity.[83]
[83] ts 987 ‑ 98.
He also submitted that the claim now made was
not focused solely on the fact that the units did or did not sell, but the fact that, after all the wash‑up occurred in the previous actions and as a result of what had happened, Orchard no longer was able to continue operating as a … commercial vehicle … for Mr and Mrs Anderson.[84]
[84] ts 102.
He submitted that the claim was now a 'forward‑looking' claim for loss, rather than a claim based on losses already sustained.[85] As I have said, there was no mention whatsoever of the loss of this kind by Orchard Holdings or the Andersons in the Orchard Holdings action.
[85] ts 103.
For the Andersons now to claim that they suffered the loss of a dividend from Orchard Holdings, which Orchard Holdings did not seek to recover in the Orchard Holdings action, would also be to seek a finding inconsistent with the findings made by Allanson J in the Orchard Holdings decision. Allanson J found that Orchard Holdings' loss was attributable to its reliance on Mr Moody's misleading and deceptive representations. Counsel for the Andersons accepted that that was so.[86] It is far from apparent how any such loss could now be attributed to the Representations made by Westpac.
[86] ts 98 ‑ 99.
There is a further difficulty in relation to the Andersons' claim for loss and damage. In the counterclaim, the Andersons seek damages to compensate them for the loss of dividends they claim they would have received, had Orchard Holdings not been left in the uncommercial position in which it found itself after its investment in the apartment complex failed. The difficulty is that it is not open to the Andersons, as shareholders of Orchard Holdings, to pursue a loss of that kind. A claim cannot be made by a shareholder to make good a loss which would be made good if the company's assets were replenished through action against the party responsible for the loss. This principle is not confined in its application to a loss in the value of shares. In Ekes v Commonwealth Bank of Australia[87] Bathurst CJ, with whom Beazley P agreed, said:
The principles are well established. When a company suffers loss caused by a breach of duty owed to the company, no action lies at the suit of a shareholder to make good a diminution of the value of the shareholder's shareholding where that loss merely reflects the loss suffered by the company … . That principle extends to include losses suffered as a result of diminution in the value of a person's shareholding, loss of dividends and other amounts which the shareholder might have obtained from the company had it not been deprived of its funds … . The principle extends to a case where both the company and the shareholder have a claim for breach of duty which caused the loss.
[87] Ekes v Commonwealth Bank of Australia [2014] NSWCA 336 [150] (Bathurst CJ, Beazley P agreeing).
The principle does not prevent the shareholder suing for a loss suffered from a breach of duty owed to him or her where the loss is separate and distinct from the loss suffered by the company.[88] But the counterclaim does not allege any such loss. That difficulty highlights that if any such loss were to be claimed, the proper means to do so was through a claim made by Orchard Holdings itself in the Orchard Holdings action.
[88] Ekes v Commonwealth Bank of Australia [2014] NSWCA 336 [151] (Bathurst CJ, Beazley P agreeing).
Fifthly, there is no suggestion that any fresh evidence has emerged which would warrant the Andersons being permitted to advance the claims in the Subject Pleadings. On the contrary, counsel for the Andersons submitted that the evidence on which the Andersons would wish to rely would be no different from that on which they relied in the Orchard Holdings action.
Sixthly, to permit the Andersons to now pursue claims against Westpac would have the consequence that if those claims succeeded, Westpac would be denied the opportunity it would have had (had it been joined in the Orchard Holdings action) to have its liability for any losses suffered by the Andersons apportioned by reference to the liability of the defendants in the Orchard Holdings action, as concurrent wrongdoers, pursuant to pt 1F of the CLA or pt VIA of the TPA. As I have explained above at [71], Allanson J determined the question of apportionment as between the first, second and third defendants.
Having taken all of these matters into account, the inescapable conclusion is that to permit the Andersons to pursue the claims made in the Subject Pleadings, in all of the circumstances, would undermine the integrity of the system of administration of justice, and would be unfair and oppressive to Westpac.
Accordingly, the Subject Pleadings in the ADCC - both in the defence, and as they are repleaded in the counterclaim - should be struck out on the ground that they constitute an abuse of the process of the Court.

Why Westpac is entitled to summary judgment on the counterclaim

In the course of the hearing, counsel for the Andersons made clear that although the counterclaim repeats those paragraphs of the defence which set out the statutory unconscionability claim, the Andersons relied upon the statutory unconscionability claim only as a defence to Westpac's action.[89]
[89] ts 123 ‑ 124.
That being so, and in view of the fact that all of the other paragraphs of the counterclaim will be struck out on the basis that they constitute an abuse of process, the result is that the counterclaim is devoid of any content.
Westpac is therefore entitled to an order for summary judgment on the counterclaim.

Why Westpac's application for summary judgment on its action should be granted

Westpac's application for summary judgment on its action is made pursuant to O 14 r 1 RSC. That rule permits a plaintiff, following service of its statement of claim, and following an appearance by the defendant, to apply to the Court for judgment against the defendant, on the ground that the defendant has no defence to the claim, or to a particular part of the claim.[90]
[90] RSC O 14 r 1(1).
On the hearing of the application, unless the defendant satisfies the Court that there is an issue or question in dispute which ought to be tried, or that for some other reason there should be a trial, the Court may give judgment for the plaintiff on the claim.[91]
[91] RSC O 14 r 3(1).
The plaintiff's affidavit in support of the application for summary judgment must verify the essential elements of the cause of action upon which the application is based[92] and must state that the deponent verily believes that there is no defence to the claim.[93] Notice of a proposed defence (or, in this case, notice of the actual defence) does not disqualify a plaintiff from asserting the belief that there is no defence to the claim.[94]
[92] Evans Deakin & Co Pty Ltd v Kaiser Engineers & Constructors Inc [1968] Qd R 379, 382.
[93] RSC O 14 r 2(1).
[94] McInnes Concrete Service Pty Ltd v Inform Formwork Pty Ltd (Unreported, WASC, Library No 940251, 11 May 1994) 4 (Adams M).
As I have noted above at [52] ‑ [54], a plaintiff who applies for summary judgment bears the burden of persuading the Court that the claim is a good one and that there is no defence. If the plaintiff's affidavit in support of the application makes out a prima facie case on those two matters, an evidentiary burden will pass to the defendant to show that there is a defence to the action. However, the overall legal burden remains with the plaintiff to persuade the Court that the relief sought should be granted.[95]
[95] Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18, 23 (Murray J).
There is no doubt that the power to grant summary judgment to a plaintiff will be exercised with great care and will not be exercised unless it is clear that there is no real defence to be tried.[96] If it is not possible to say, without doubt, on the whole of the material, that there is no question to be tried, the defendant should have the opportunity to defend the action.[97] Having said that, if the facts are undisputed and the case is clear, summary judgment should be given.[98]
[96] Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99 (the Court).
[97] Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99 (the Court); Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57] (Gaudron, McHugh, Gummow & Hayne JJ); Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 (Gleeson CJ, Gummow, Hayne & Crennan JJ); SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138 [20] (the Court).
[98] The State of Western Australia v Rothmans of Pall Mall (Australia) Ltd [2001] WASCA 25 [20], [36] (Stein AJ, Malcolm CJ & Wallwork J agreeing).
Where a defendant files an affidavit to resist an application for summary judgment, the affidavit should deal specifically with the plaintiff's claim and their affidavit, should set out the particulars of the defence and should state the facts which show that the defence is arguable (although it is not necessary to set out all of the facts which would be necessary to establish the defence at trial).[99]

The evidence relied upon by Westpac in support of its claim for summary judgment on its action

[99] Whitehall Holdings Pty Ltd v Custom Credit Corporation Ltd (Unreported, WASCA, Library No 9189, 13 December 1991).

Mr Cannalonga's affidavit addressed the Andersons' entry into the Loan Agreement, and the grant of the Mortgage, and annexed documents pertaining to the Andersons' loan from Westpac.
That evidence indicates that on 21 August 2008, the Andersons signed an acceptance of loan offer from Westpac for a Bridging Option Home Loan. The terms of the Loan Agreement were set out in that letter, together with an accompanying booklet of standard terms and conditions.[100] The terms of the Loan Agreement included that the Andersons agreed to pay a variable housing rate of interest (at 9.61% per annum) on that amount. In addition, for part of the period of the loan, a margin of 1% per annum of interest was to be added to the variable housing rate of interest so that the annual percentage rate of interest applicable to the loan amount would be 10.61% per annum.
[100] Affidavit of Domenico Cannalonga at annexure DC2.
The term of the loan was to be for a period of six months, after which the entire loan amount plus the interest which had accrued on it would be required to be repaid. In addition, an additional interest charge was to apply in the event that the Andersons defaulted on their repayment when it was due. The default rate on the loan meant that a total interest rate of 11.61% per annum would apply to the loan amount.
The security provided for the loan was the Property and the Trigg property.
A copy of the Mortgage was also annexed to Mr Cannalonga's affidavit.[101] The Mortgage incorporated the terms contained in the MOP. The MOP provided that, in the event that the Andersons failed to pay Westpac any amount due under the Mortgage, which failure continued for at least seven days, Westpac was entitled to serve a notice of default.[102] The MOP also provided that if the default continued for at least 31 days after service of the Notice of Default, then Westpac was entitled to require the Andersons to repay all monies secured by the Mortgage, and to take possession of the Property.[103]
[101] Affidavit of Domenico Cannalonga at annexure DC3.
[102] Clause C2 of the MOP.
[103] Clause C2 of the MOP.
Mr Cannalonga's affidavit also annexed copies of documentation by which Westpac and the Andersons varied the amount of credit available under the loan agreement. Five such variations were made.[104]
[104] Affidavit of Domenico Cannalonga [12] ‑ [30].
Mr Cannalonga deposed that the Andersons did not repay the outstanding balance of the loan amount to Westpac by the repayment date (as varied) of 31 January 2011. By a notice of default dated 19 April 2013, Westpac gave notice to the Andersons that they were in default by reason of their failure to pay to make a repayment that was due.

Mr Botsis deposed to service on the Andersons of a Notice of Default dated 19 April 2013. That Notice advised the Andersons that they had defaulted on the Loan Agreement by failing to pay an amount which was due, and that they had 31 days to remedy that default by repaying the total arrears in respect of that payment, failing which Westpac would commence proceedings to recover the full amount of the loan and to exercise its power of sale of the Property to recover the amount owing under the Loan Agreement.[105]
[105] Affidavit of Phillip Chris Botsis at annexure PCB1.
Mr Cannalonga deposed that the Andersons failed to rectify that default within the time specified in the Notice of Default and did not repay the balance of the loan amount after the repayment date.[106]
[106] Affidavit of Domenico Cannalonga [33].
Mr Cannalonga deposed that he believes that the Andersons have no defence to Westpac's action.[107]
[107] Affidavit of Domenico Cannalonga [34].
Counsel for Westpac submitted that the affidavit evidence on which Westpac relied established all of the elements of its cause of action for possession and that it was prima facie entitled to judgment.
In the ADCC, the Andersons admit that they entered the Loan Agreement and Mortgage, but they do not admit the variations to the Loan Agreement. That those variations were made is, however, confirmed by Mr Cannalonga in his affidavit.[108] The Andersons also do not admit that the loan fell due on 31 January 2011 and that they failed to repay it. However, their default is confirmed by Mr Cannalonga.[109] Although the Andersons admitted the service of the Notice of Default, they denied that they failed to remedy the default. Mr Cannalonga deposed to the contrary.[110]
[108] Affidavit of Domenico Cannalonga at annexure DC4 ‑ DC8.
[109] Affidavit of Domenico Cannalonga at annexure DC8 and [31].
[110] Affidavit of Domenico Cannalonga [33].
On those facts, Westpac relies on cl C2 of the MOP and says it was entitled to possession 31 days after service of the Notice of Default, in accordance with the terms of the MOP.
Having regard to the matters in the affidavits of Mr Cannalonga and Mr Botsis, I accept that Westpac has established that it is prima facie entitled to possession of the Property.

The lack of evidence to establish that the Andersons have a defence to Westpac's action for possession

Because Westpac has established that prima facie entitlement to summary judgment, the Andersons assume the evidentiary burden of showing that there is a triable issue as required by O 14 r 3(1) RSC. The difficulty for the Andersons is that they have not provided evidence, on affidavit, to demonstrate that they have a defence to Westpac's claim for possession. As I noted earlier, Mr Anderson's affidavit sworn 31 May 2016 simply lists objections to the Application and annexes documents which do not appear, on their face, to establish that the Andersons have a defence to Westpac's action.
In view of my decision that the Subject Pleadings in the ADCC should be struck out as an abuse of process, all that remains in the defence is the statutory unconscionability claim. Because the Andersons have not, in effect, provided any evidence to support the conclusion that that claim constitutes a defence to Westpac's action, the question whether Westpac is entitled to summary judgment on its claim depends on whether, having regard to the material before the Court (as set out in the affidavits on which Westpac relied), Westpac has discharged the ultimate burden of establishing that the Andersons do not have a defence to its claim for possession. There may be a question as to whether it is appropriate to assess Westpac's claim by reference to the Andersons' defence. After all, summary judgment applications are ordinarily brought before a defence is filed. In this case, however, the defence has been filed, and in my view, it is just to take into account the Andersons' grounds for resisting possession, and to assess whether a question to be tried in relation to those grounds has been shown to exist on the evidence before the Court.
Before turning to that analysis, it is appropriate to bear in mind the bases for the statutory unconscionability claim which the Andersons make, which lie in s 12CB and s 12CC of the ASIC Act and s 51AC of the TPA.

Section 12CB and s 12CC of the ASIC Act and s 51AC of the TPA

Section 12CB of the ASIC Act provides that a person (the supplier) must not, in trade or commerce, and in connection with the supply of financial services to another person (the service recipient), engage in conduct that is, in all of the circumstances, unconscionable. In judging whether conduct is unconscionable in particular circumstances, the Court will take into account various matters,[111] such as the relative strengths of the bargaining positions of the suppliers and the service recipient; whether as a result of conduct of the supplier, the service recipient was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier; whether the service recipient was able to understand any documents relating to the supply of the financial services; whether any undue influence or pressure was exerted on the service recipient, or unfair tactics used against them; the amount for which the service recipient could have acquired identical or equivalent financial services from someone else apart from the supplier; the extent to which the supplier's conduct towards the service recipient was consistent with the supplier's conduct towards other similar service recipients; and the extent to which the supplier was willing to negotiate the terms and conditions of any conduct for the supply of the financial services which it entered into with the service recipient.
[111] See s 12CC(2) of the ASIC Act.
Section 12GM of the ASIC Act gives the Court a wide range of discretionary powers to make orders to compensate the service recipient for loss or damage, or to prevent loss or damage, as a result of the unconscionable conduct. Significantly for present purposes, those powers include the power to make an order declaring the whole or a part of a contract to be void, and orders varying a contract.
Similarly, s 51AC of the TPA prohibits a corporation, in trade or commerce, and in connection with the supply of goods or services to a person, from engaging in conduct which is, in all of the circumstances, unconscionable. The factors which may be relevant to determining whether conduct contravenes that section are similar to those which will be relevant in relation to unconscionability under s 12CB of the ASIC Act.[112]
[112] See TPA s 51AC(3).
The ordinary meaning of 'unconscionable conduct' in s 12CB of the ASIC Act is doing what should not be done in good conscience.[113] And s 51AC of the TPA has been held to apply in relation to conduct that is regarded as unconscionable, serious misconduct, or something clearly unfair or unreasonable.[114]
[113] Australian Securities and Investments Commission v National Exchange Pty Ltd [2005] FCAFC 226; (2005) 148 FCR 132, 140 [33] (the Court).
[114] Canon Australia Pty Ltd v Patton [2007] NSWCA 246; (2007) 244 ALR 759, 768 [40] (Campbell JA, Harrison J agreeing) citing, with approval, Hurley v McDonald's Australia Ltd (2000) ATPR 41‑741, 40,585 [22].
The courts have adopted a range of ways of expressing the benchmark for statutory unconscionability, including by requiring a 'high' (or perhaps 'significant' or 'real') degree of moral obloquy in order for a service provider's conduct to be regarded as unconscionable.[115] More recently the Full Federal Court in Lux Distributors stated that the facts of the case should be evaluated 'by reference to a normative standard of conscience ... permeated by accepted and acceptable community values'.[116]

The pleaded basis for the statutory unconscionability claim

[115] Cf Attorney General of New South Wales v World Best Holdings Ltd [2005] NSWCA 261; (2005) 63 NSWLR 557, 583 [121] (Spigelman CJ); Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389 [289], [291] (Allsop P); Body Bronze International Pty Ltd v Fehcorp Pty Ltd [2011] VSCA 196; (2011) 34 VR 536, 555 [90] (Macaulay AJA, Harper & Hansen JJA agreeing); Canon Australia Pty Ltd v Patton [2007] NSWCA 246; (2007) 244 ALR 759, 768 [42] (Campbell JA, Harrison J agreeing), cf 761 [4] (Basten JA).

[116] Australian Competition Ltd and Consumer Commission v Lux Distributors Pty Ltd [2013] FCAFC 90 [23]; Paciocco v Australia & New Zealand Banking Group Ltd [2015] FCAFC 50; (2015) 236 FCR 199, 265 ‑ 266.

The statutory unconscionability claim made by the Andersons was not well pleaded, and consequently the claim itself is not entirely clear. Counsel for the Andersons did not dispute that that was so. However, he submitted that the Court should strike out the claim with leave to re‑plead, rather than summarily dismiss it.[117]
[117] ts 122 ‑ 123.
As I have noted at [26] ‑ [27], the Andersons plead that Westpac is acting unconscionably in seeking to enforce the terms of the Loan Agreement and the Mortgage. I note for completeness that it does not appear that the Andersons contend that the interest charged by Westpac constituted a penalty, that is, the imposition of a different liability for the breach of a primary contractual stipulation, which is imposed effectively as a punishment for non-observance of the contractual stipulation.[118] It is not, for example, pleaded that the additional rate of interest charged, over and above the variable rate, in the event of a default, was 'extravagant and unconscionable'[119] or grossly disproportionate[120] to the protection of Westpac's interests.
[118] Paciocco v Australia & New Zealand Banking Group Ltd [2016] HCA 28; (2016) 333 ALR 569 [16] ‑ [22] (Kiefel J, French CJ agreeing), [118] (Gageler J).
[119] Paciocco v Australia & New Zealand Banking Group Ltd [2016] HCA 28; (2016) 333 ALR 569 [29], [33], [54] (Kiefel J, French CJ agreeing), [371] (Nettle J).
[120] Paciocco v Australia & New Zealand Banking Group Ltd [2016] HCA 28; (2016) 333 ALR 569 [221] (Keane J).
The Andersons do not plead that Westpac's conduct in entering into the Loan Agreement, or in agreeing the terms of the Loan Agreement or the Mortgage, was - in and of itself - unconscionable. Nevertheless, the Andersons claim that they are entitled to an order declaring the Loan Agreement and Mortgage void ab initio, which tends to suggest that the claim of unconscionability strikes at the very existence of the Loan Agreement and the Mortgage. On the other hand, the Andersons also plead, in the alternative, that they are entitled to an order to the effect that Westpac cannot recover from them compound interest at penalty rates, and an order varying the terms of the Loan Agreement and the Mortgage.
As pleaded, what is said to render Westpac's conduct unconscionable, for the purposes of s 12CB of the ASIC Act or s 51AC of the TPA, is the inequality of bargaining power between Westpac and the Andersons, the Representations, the interest rate charged in the event of a default, and the alleged capitalisation of the interest. In my view, the material before the Court does not permit the conclusion that the Andersons have a defence to Westpac's action, on the basis that Westpac's conduct was unconscionable within the meaning of s 12CB of the ASIC Act or s 51AC of the TPA, so as to raise the possibility that they could obtain an order that the Loan Agreement is void ab initio. I have reached that view for the following reasons.
First, the superiority of bargaining power of the provider of financial services is not enough of itself to constitute a breach of s 12CB of the ASIC Act or s 51AC of the TPA.
Secondly, in so far as the Andersons rely on the Representations, it is far from apparent how those circumstances could suffice to support a conclusion of unconscionability on Westpac's part. If Westpac did not know that the contracts for the purchase of the apartments, or the other Pre‑Sale Contract Documents, were fraudulent, it is difficult to see how its acceptance of those documents as satisfying the conditions precedent for the business finance facility, or its representation to the Andersons that the condition precedent was met, could constitute unconscionable conduct on its part in entering into the Loan Agreement. The Andersons do not allege that Westpac knew that the Pre‑Sale Contract Documents were not genuine.
Thirdly, in so far as it is alleged that Westpac breached a duty of care to the Andersons when it made the Representations in question, or that it is vicariously liable for Freehills' breach of duty of care in relation to the Representations contained in the Freehills letter, it is difficult to see how such mere negligence, if any occurred in those circumstances, would be capable of supporting a finding of a breach of the moral or normative standards of conscience, necessary to establish statutory unconscionability.
Fourthly, in so far as the Andersons rely on the additional interest charged in the event of a default, the Loan Agreement annexed to Mr Cannalonga's affidavit indicated that the base interest rate charged on the loan to the Andersons for the purchase of the Property was 9.61% per annum (which appears to have been the variable interest rate which applied at that time), and that for a period the Andersons paid interest at the rate of 10.61% per annum. The additional interest imposed in the event of a default meant that the total interest rate was 11.61% per annum - that is, 1% per annum more than the applicable rate absent a default.
Counsel for the Andersons submitted that the only (other) evidence which would be relevant to the statutory unconscionability claim would be expert evidence[121] which presumably would be directed to the disparity (if any) between the interest rate charged in the event of a default, and Westpac's commercial interests, which may be protected by the imposition of an additional rate of interest in the event of a default. However, no evidence - expert or otherwise - was advanced to indicate that the Andersons have any basis whatsoever for claiming that the imposition of the additional 1% per annum in interest in the event of a default was substantially in excess of Westpac's costs and overheads. Similarly, although the Loan Agreement annexed to Mr Cannalonga's affidavit indicates that interest charged on the loan amount was capitalised, there was no evidence to indicate that the Andersons have any basis for claiming that the rate of interest in the event of a default was substantially in excess of Westpac's costs and overheads. Moreover, it was apparent from counsel's submissions that the Andersons presently have no such evidence. This aspect of their defence is no more than mere assertion.
[121] ts 124.
Fifthly, counsel for the Andersons sought to draw some support from the decision in PSAL Ltd v Kellas‑Sharpe[122] in which the Queensland Supreme Court held that a loan agreement between PSAL and Ms Kellas‑Sharpe was unconscionable, contrary to s 12CB of the ASIC Act. Under that loan agreement, Ms Kellas‑Sharpe was required to pay interest at a rate of 4% per month, plus an additional 3.5% per month in the event of a default. In addition, the agreement permitted the capitalisation of the unpaid interest, resulting in the accrual of interest on unpaid interest.
[122] PSAL Ltd v Kellas‑Sharpe [2012] QSC 31.
Applegarth J was not persuaded that the additional interest charged in the event of a default on the loan constituted a penalty.[123] However, he held that the capitalisation of the interest in the circumstances was unconscionable. Those circumstances were that the loan was initially intended to be repaid within two months, but endured for a much longer period of time, all the while accruing 7.5% interest per month on a compounding basis. The result of the capitalisation of interest was that the interest component of the overall debt owed became very significant indeed. His Honour held that PSAL's conduct in enforcing those provisions constituted a contravention of s 12CB of the ASIC Act and s 51AC of the TPA.[124] Applegarth J ordered that the loan agreement and mortgage should be read as if any reference to the capitalisation of interest was deleted from the documents[125] and as if the interest charged were simply PSAL's standard monthly rate.[126]
[123] PSAL Ltd v Kellas‑Sharpe [2012] QSC 31 [74] (Applegarth J).
[124] PSAL Ltd v Kellas‑Sharpe [2012] QSC 31 [115], [119] (Applegarth J).
[125] PSAL Ltd v Kellas‑Sharpe [2012] QSC 31 [123] (Applegarth J).
[126] PSAL Ltd v Kellas‑Sharpe [2012] QSC 31 [123] (Applegarth J).
Ms Kellas‑Sharpe appealed against his Honour's decision in so far as he found that the rate of interest applicable in the event of a default did not constitute a penalty. The Queensland Court of Appeal dismissed the appeal.[127]
[127] Kellas‑Sharpe v PSAL Ltd [2012] QCA 371.
The decision in PSAL provides little assistance to the Andersons. Factually, the case was very different to the present case. The additional 3.5% interest rate per month which was charged, and which capitalised from month to month, was of a very different magnitude to the additional 1% per annum rate of interest which is charged in the event of a default pursuant to the Loan Agreement. Furthermore, the unconscionability of PSAL's conduct in that case was supported by expert evidence in relation to its costs and overheads in respect of a loan in default.
Sixthly, as counsel for Westpac pointed out,[128] even if the Court concluded that the interest rate charged or the capitalisation of interest pursuant to the Loan Agreement was unconscionable, the decision in PSAL suggests that that would not result in the entirety of the Loan Agreement being declared void ab initio.
[128] ts 141.
In my view, there is nothing in the material before the Court which supports the conclusion that there is a question to be tried as to whether Westpac's conduct in enforcing the Loan Agreement is unconscionable so as to warrant an order that the Loan Agreement is void ab initio, and so as to give the Andersons a defence to Westpac's action for possession.
In those circumstances, I am satisfied that Westpac has made out its claim for summary judgment on the action. There will be an order that the Andersons give possession of the Property to Westpac.