Westpac Banking Corporation v Bongiovanni - [2025] WASC 273

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   WESTPAC BANKING CORPORATION -v- BONGIOVANNI [2025] WASC 273
CORAM:   WHITBY J
HEARD:   23 - 25 & 27 JUNE 2025
DELIVERED          :   9 JULY 2025
FILE NO/S:   CIV 2042 of 2021
BETWEEN:   WESTPAC BANKING CORPORATION
Plaintiff
AND
MARIA BONGIOVANNI also known as MARIA BONGIOVANNI-HUGHES
First Defendant
HYWEL GLYN HUGHES
Second Defendant
HYWEL GLYN HUGHES
MARIA BONGIOVANNI also known as MARIA BONGIOVANNI-HUGHES
Plaintiffs by counterclaim
AND
WESTPAC BANKING CORPORATION
Defendant by counterclaim

Catchwords:

Contract law - Enforceability of loan agreement and mortgage - Repayments not made in accordance with terms of loan agreement and mortgage

Misleading and deceptive conduct - Whether plaintiff engaged in conduct in contravention of Australian Securities and Investments Commission Act 2001 (Cth) s 12DA, the 1993 Banking Practice (WA) and/or Consumer Credit (Western Australia) Code (WA)

Limitation periods - Whether claims made by the defendants are time-barred

Legislation:

Australian Securities and Investments Commission Act 2001 (Cth)
Competition and Consumer Act 2010 (Cth)
Consumer Credit (Western Australia) Act 1996 (WA)
Consumer Credit (Western Australia) Code (WA)
Transfer of Land Act 1893 (WA)

Result:

Judgment for the plaintiff
Defendants' counterclaims dismissed

Category: B

Representation:

Original Action

Counsel:

Plaintiff	:	P Honey & C M Guy
First Defendant	:	In person
Second Defendant	:	In person

Solicitors:

Plaintiff	:	Thomson Geer - Perth
First Defendant	:	In person
Second Defendant	:	In person

Counterclaim

Counsel:

Plaintiffs by counterclaim	:	In person
Defendant by counterclaim	:	P Honey & C M Guy

Solicitors:

Plaintiffs by counterclaim	:	In person
Defendant by counterclaim	:	Thomson Geer - Perth

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

Cigna Insurance Asia Pacific Ltd v Packer [2000] WASCA 415
Taco Co of Aust v Taco Bell Pty Ltd (1982) 42 ALR 177
Timms v Commonwealth Bank of Australia [2004] NSWSC 76
Wardley Australia Ltd v The State of Western Australia [1992] HCA 55; (1992) 175 CLR 514

WHITBY J:

On 10 January 2003, Maria Bongiovanni and Hywel Hughes, the first and second defendants respectively, borrowed $255,000 from the Westpac Banking Corporation (Loan), the plaintiff, to purchase 9 Mannite Place, Stirling (Stirling Property). The defendants signed a loan agreement (Loan Agreement) and two mortgages as security for the Loan - one over the Stirling Property (Stirling Mortgage) and the other over 23 Almurta Way, Nollamara (Nollamara Mortgage) - a property owned by the first defendant.
In 2011, the Loan fell into arrears. The defendants have not made any Loan repayments since May 2018. As at 20 June 2025, the total amount owing pursuant to the Loan Agreement was $627,233.58. In October 2021, the plaintiff commenced this action seeking payment of the debt owing and orders for possession of the Stirling Property.
The defendants filed a defence and counterclaim. But for the defence and counterclaim, the action is straightforward. The plaintiff has proved that it lent money to the defendants on the security of the Stirling Mortgage and that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] WASC 273
Decision Date: 9 JULY 2025

CaseChat Overview and Summary

Westpac Banking Corporation sought to enforce a loan agreement and mortgage against Bongiovanni, claiming that repayments were not made as per the terms of the loan agreement and mortgage. The defendants raised multiple defences, including that the plaintiff engaged in misleading or deceptive conduct in contravention of the Australian Securities and Investments Commission Act 2001, the 1993 Banking Practice (WA), and the Consumer Credit (Western Australia) Code. Additionally, Bongiovanni argued that the plaintiff's claims were time-barred.

The court was required to determine whether the loan agreement and mortgage were enforceable against Bongiovanni, whether the plaintiff had engaged in misleading or deceptive conduct, and if the claims made by Bongiovanni were time-barred. The court considered whether the defendants' conduct amounted to misleading or deceptive conduct and assessed the applicability of the limitation periods for the plaintiff's claims.

The court found that the loan agreement and mortgage were enforceable, and the plaintiff had not engaged in misleading or deceptive conduct. The court also determined that the claims made by Bongiovanni were time-barred, as they were not brought within the statutory limitation periods. Consequently, the plaintiff's claim for enforcement of the loan agreement and mortgage was upheld, and Bongiovanni's defences were dismissed.

The court ordered that Bongiovanni pay the outstanding balance of the loan, interest, and costs to the plaintiff. The court further declared that the mortgage over Bongiovanni's property remained in favour of the plaintiff until the outstanding balance was paid.

Orders