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
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Westpac Banking Corporation v Anderson [2017] WASC 106
Case
[2017] WASC 106
Decision Date
CaseChat Overview and Summary
Westpac Banking Corporation (Westpac) sought summary judgment against Mr and Mrs Anderson (the Andersons) in the Supreme Court of Western Australia, arguing that the Andersons' defence was untenable. The dispute primarily revolved around allegations of abuse of process and statutory unconscionability regarding the interest rates and capitalisation applied to the Andersons' mortgage. Westpac contended that the Andersons' claims were substantially similar to those raised in previous proceedings against another party, Orchard Holdings, and that the Andersons lacked a valid defence. The Andersons, on the other hand, argued that their claims were distinct and had merit, particularly concerning the alleged unconscionable conduct by Westpac.
The primary legal issues before the Court included whether the Andersons' claims amounted to an abuse of process given their substantial similarity to previous litigation, and whether Westpac's conduct met the statutory threshold for unconscionability under the Australian Securities and Investment Commission Act 2001 and the Trade Practices Act 1974. Additionally, the Court had to determine whether the interest rates and capitalisation practices of Westpac constituted unconscionable conduct. The Court also needed to decide whether the Andersons had adduced sufficient evidence to demonstrate a defence to Westpac's application for summary judgment.
The Court found that Westpac had made out a prima facie case for summary judgment as the Andersons had not provided any evidence to counter Westpac's claims. The Court concluded that the Andersons' claims were substantially similar to those in the previous litigation against Orchard Holdings, and that the only new aspect—the statutory unconscionability claim—was not sufficient to justify continuing with the litigation. The Court held that the Andersons' case amounted to an abuse of process and that Westpac's interest rates and capitalisation practices did not reach the threshold of statutory unconscionability. Consequently, the Court granted Westpac's application for summary judgment on its action and dismissed the Andersons' counterclaim.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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.
Decision
Reasons for decision
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).