Westpac Banking Corporation v Cahill
[2024] WASC 246
•8 JULY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: WESTPAC BANKING CORPORATION -v- CAHILL [2024] WASC 246
CORAM: MASTER RUSSELL
HEARD: 11 JUNE 2024 & 27 JUNE 2024
DELIVERED : 27 JUNE 2024
PUBLISHED : 8 JULY 2024
FILE NO/S: CIV 2136 of 2022
BETWEEN: WESTPAC BANKING CORPORATION (ACN 007 457 141)
Plaintiff
AND
MARCUS ANTHONY CAHILL
Defendant
Catchwords:
Practice and procedure – Summary judgment – Mortgage action – Application for possession of property – Turns on own facts
Practice and procedure – Strike out application – Application to strike out defence on grounds it discloses no reasonable defence – Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 14, O 14 r 1, O 14 r 1(1), O 14 r 2(1), O 14 r 3, O 20 r 19, O 20 r 19(1)(a)
Result:
Application granted
Defence struck out
Summary judgment entered for the plaintiff
Order for possession of mortgaged property
Category: B
Representation:
Counsel:
| Plaintiff | : | Ms C M Guy |
| Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Thomson Geer Lawyers |
| Defendant | : | No appearance |
Cases referred to in decision(s):
Connell v Australia and New Zealand Banking Group Limited [2023] WASCA 48
English v Vantage Holdings Group Pty Ltd [2021] WASCA 47
Kelly v Fiander [2023] WASC 187
Litigation Capital Partners LLP Pte Ltd (Registration No 200922518M) v ACN 117 641 004 Pty Ltd (In Liquidation) (formerly known as Vale Cash Management Fund Pty Ltd) [2021] WASC 161
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398
Westpac Banking Corporation v Anderson [2017] WASC 106
Yap v Matic [No 4] [2022] WASC 422
Yap v Matic [No 7] [2023] WASC 55
MASTER RUSSELL:
Introduction
The defendant, Marcus Anthony Cahill, is the registered proprietor of the property known as 46 Worcester Loop, Butler, Western Australia 6036 which is more particularly described as Lot 502 on Deposited Plan 32984 and being the whole of the land comprised in Certificate of Title Volume 2524 Folio 270 (Property).
The plaintiff, Westpac Banking Corporation, commenced this proceeding against the defendant on 28 October 2022, seeking orders for possession of the Property pursuant to the terms of written loan agreements and a mortgage, as set out in the statement of claim indorsed on the writ.
On 4 August 2023, the plaintiff filed an ex parte motion for orders for substituted service pursuant to O 72 r 4 of the Rules of the Supreme Court 1971 (WA) (RSC).
On 29 August 2023, orders were made for substituted service of the writ of summons indorsed with the statement of claim and Form No 4 notice for possession, foreclosure or sale of mortgaged property.
Substituted service was effected on 27 September 2023. The defendant entered an appearance on 4 October 2023 and filed a document titled 'Statement of Defence to Statement of Claim' on 5 October 2023 (Defence). Between 8 December 2023 until 4 January 2024, the plaintiff had a moratorium on all legal recovery actions.
On 16 April 2024, the plaintiff, who states it was unaware that an appearance had been entered or a defence filed, applied for judgment in default of appearance. That application was dismissed on 30 April 2024.
By chamber summons filed on 10 May 2024, the plaintiff applied to strike out the Defence pursuant to RSC O 20 r 19 (Strike Out Application) and for summary judgment against the defendant pursuant to RSC O 14 r 3 (Summary Judgment Application) (the Applications).
On 5 June 2024, the defendant filed a number of documents which are referred to in more detail later in these reasons, by which he seeks to challenge the validity of the plaintiff's affidavits and the court's authority and jurisdiction.
The Applications first came before me on 11 June 2024. There was no appearance by the defendant at that hearing. Counsel appearing for the plaintiff sought final orders. I made orders for the defendant to file any affidavits in opposition to the Applications and adjourned the hearing of the Applications to 27 June 2024.
The defendant has not filed any further affidavits in opposition to the Applications. A one-page document titled 'Discharge Notice', stating that the Property is under offer, was filed by the defendant on 16 June 2024.
There was no appearance by the defendant at the adjourned hearing on 27 June 2024. Having considered the affidavits filed in support of the Applications on behalf of the plaintiff and the material filed by the defendant, I was satisfied that the plaintiff's claim is clearly established and that the documents filed by the defendant disclose no arguable defence to the plaintiff's claim.
I allowed the Applications and made orders extending the time to bring the Applications, striking out the Defence, entered judgment for the plaintiff and ordered the defendant to deliver up possession of the Property to the plaintiff.
I said I would publish reasons for my decision. These are my reasons.
The court's jurisdiction to hear and determine the Application
The documents filed by the defendant contend that the court does not have jurisdiction to hear or determine the Applications. The statements made in those documents have no basis in law and make no legal sense.
Notwithstanding the defendant's position as to the lack of this court's jurisdiction, he has entered an unconditional appearance and has participated in the proceeding by filing documents.
I am satisfied that the court has jurisdiction in this matter, and to hear and determine the Applications.
Evidence relied upon by the plaintiff
In support of the Applications, the plaintiff relies on the affidavits of:
(a)Cassandra Michelle Guy sworn on 10 and 29 May 2024 and 6 June 2024;
(b)Alexander Manoel sworn on 16 April 2024; and
(c)Jack Liam Gray affirmed on 21 February 2024.
Evidence of the plaintiff
The following facts are derived from the statement of claim as verified by the affidavits filed in support of the Applications, which I accept.
On 22 August 2019, the defendant entered into a written loan agreement with St George Bank Limited (St George) (Loan Agreement), pursuant to which St George agreed to lend $355,000 to the defendant (Loan). The defendant agreed to repay the Loan in accordance with the terms and conditions of the Loan Agreement, as set out in the statement of claim.
Under another written loan agreement between the plaintiff and St George dated 22 August 2009 (Line of Credit Agreement), St George agreed to provide a facility to the defendant in the amount of $75,000 (Line of Credit). The defendant agreed to repay the Line of Credit in accordance with the terms and conditions of the Line of Credit Agreement, as set out in the statement of claim.
As security for the Loan and Line of Credit, the defendant provided a mortgage over the Property in favour of St George, registered on 6 October 2009 with dealing number L095954 (Mortgage).
The business of St George was transferred to the plaintiff under the Financial Sector (Business Transfer and Group Restructure) Act 1999 (Cth) (Financial Sector Business Transfer Act) on 1 March 2010, pursuant to which:
(a)the plaintiff became the successor‑in‑law of St George;
(b)all the assets and liabilities of St George became the assets and liabilities of the plaintiff; and
(c)any instruments to which St George was a party or under which money is, or may become, payable to St George continues to have effect as if a reference in the instrument to St George were a reference to the plaintiff.[1]
[1] Financial Sector (Transfer and Restructure) Act 1999 (Cth), s 22(1).
The defendant failed to pay the amount due and owing under the Loan Agreement and the Line of Credit Agreement and, on 13 September 2022, the plaintiff issued a notice of default (Default Notice) to the defendant, which was sent by registered post to his residential address (the Property), as stated in the affidavit of Mr Gray.
The Default Notice stated that the defendant was in default of the terms of the Loan Agreement, Line of Credit Agreement and Mortgage for failing to pay $40,687.25 under the Loan Agreement, and $7,579.64 under the Line of Credit. The Default Notice required the defendant to remedy the default by paying those amounts by 24 October 2022, failing which the plaintiff would be entitled to commence enforcement proceedings claiming the amount outstanding, being $389,870.10 under the Loan Agreement, and $86,873.64 under the Line of Credit Agreement, and possession of the Property.
The defendant did not remedy the default within the time specified in the Default Notice, and under cl 29.2 of the terms of the Loan Agreement, cl 16 of the terms of the Line of Credit Agreement and cl 20.3 of the terms of the Mortgage, the total amount owing became immediately due and payable by the defendant to the plaintiff on 25 October 2022.
The defendant has failed to pay the amount due. In her further affidavit sworn on 6 June 2024, Ms Guy deposes that, as at that date, the balance owing to the plaintiff by the defendant is a total of $551,897.69, which includes arrears of $144,938.99, with interest accruing at a daily rate of $118.77.
The Defence and other documents filed by the defendant
The defendant entered an appearance to the plaintiff's claim, but did not appear at the hearings on 11 or 27 June 2024.
On 5 October 2023, the defendant filed the Defence.
In response to the Applications, the defendant filed a number of documents on 5 June 2024, as follows:
(a)Document titled 'AFFIDAVIT: Challenge the Jurisdiction of the Supreme Court under "CORAM" Jurisdiction of actor pretending to be a Judge under Chapter III Constitution Sitting in Sedition and Treason', affirmed by the defendant on 4 June 2024, which seeks to challenge the validity of the Application, the affidavits and documents filed by the plaintiff, and the court's authority and jurisdiction;
(b)Document titled 'Defendant's Challenge to Jurisdiction of the Court', which also seeks to challenge the court's jurisdiction;
(c)A copy of the chamber summons to strike out the defence and to enter summary judgment annotated and stamped 'Dog‑Latin', 'Legal‑Fiction', 'Counterfeit', 'This Instrument is Defective' and 'This Instrument is not Understood', amongst others;
(d)Further document titled 'Lawful Challenge to the Jurisdiction of the Supreme Court of Western Australia, District Court of Western Australia and Magistrate Court of Western Australia' and the rules of those courts; and
(e)Document titled 'Lawful Notice' which, amongst other things, states that the Property is on the market and disputes the validity of the contract and claim.
On 16 June 2024, the defendant filed a document titled 'Discharge Notice', giving notice to the plaintiff that the Property is currently under offer and requesting the plaintiff to prepare documents and an account for discharge.
No further affidavits were filed by the defendant in opposition to the Application in accordance with the orders made on 11 June 2024.
Application for leave
The plaintiff requires and seeks leave to bring the Applications as, in each case, they were not brought within the time provided in the RSC.
An application under RSC O 20 r 19 to strike out a pleading must be made within 21 days of service of any pleading to which the application refers. The court has a discretion to extend the time in which an application under RSC O 20 r 19 is brought.
RSC O 14 r 1(1) requires an application for summary judgment to be made within 21 days after an appearance has been filed, or any later time with leave of the court.
The 21-day limit to bring an application for summary judgment reflects the view that such applications should be brought promptly and at an early stage of the proceeding, before unnecessary expense is incurred. Where there is a delay, it must be explained and the onus is on the applicant to demonstrate that the delay is justifiable in all of the circumstances.[2]
[2] See Westpac Banking Corporation v Anderson [2017] WASC 106 [38] (Pritchard J) and the authorities referred to.
I accept the evidence set out in the affidavit of Cassandra Michelle Guy filed 10 May 2024 as to the reasons for the delay in bringing the Summary Judgment Application.
I am satisfied on the evidence before me that, though there was a delay in bringing the Summary Judgment Application, it is not an undue delay and was justifiable in the circumstances. The Summary Judgment Application is still brought at an early stage of the proceeding, having regard to the time that has elapsed and the steps taken between an appearance being entered and the application being made. There is no evidence of any prejudice to the defendant caused by the delay in bringing the Summary Judgment Application.
I am satisfied it is appropriate that the plaintiff have leave to bring the Summary Judgment Application.
For the same reasons, I am satisfied the plaintiff should also be allowed to bring the Strike Out Application. The merits of the Defence are also a relevant consideration as to whether time for the Strike Out Application should be extended, which I consider later in these reasons.
Applicable legal principles
Strike Out Application
The legal principles relating to a strike out application are well established. The principles were comprehensively set out by Smith J in Vantage Holdings Group Pty Ltd v Donnelly [No 4][3] and affirmed by the Court of Appeal in English v Vantage Holdings Group Pty Ltd.[4] It is unnecessary to set out those principles in full. For the purpose of the Strike Out Application, the relevant principles may be summarised as follows:[5]
(1)The purpose of pleadings is to narrow the issues for resolution, establish the framework for discovery and the admissibility of evidence at trial, and guarantee a fair trial by putting the opposing party on notice of what they are required to address.
(2)A pleading should avoid allegations that are overly general. A pleading must provide enough detail to inform the opposing party of the specific case it needs to address.
(3)The court should exercise caution when determining whether to strike out a pleading for failing to disclose a reasonable cause of action or defence.
(4)Relevantly, in determining whether there is no reasonable defence to the claim, the issue is not whether the facts alleged are sufficient on their own to establish a defence. The key consideration is whether the party could, on its pleading, prove facts at trial which would form the basis of a defence. If the alleged facts could potentially lead to a defence, then the defence should be considered reasonable.
(5)Pleadings should not be struck out merely because a party's case appears weak.
[3] Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398 [60] (citations omitted).
[4] English v Vantage Holdings Group Pty Ltd [2021] WASCA 47 [55] - [56].
[5] Insofar as they apply in this case and on the basis the application is to strike out a defence.
Generally, a party to proceedings has the right to present its case, have the facts determined, and make arguments in relation to legal issues arising. A pleading should only be dismissed if, even assuming the facts as stated by a party are true, there is no support for the legal conclusion they assert. When determining a strike out application, all facts alleged in the pleading must be assumed to be true.[6]
[6] Litigation Capital Partners LLP Pte Ltd (Registration No 200922518M) v ACN 117 641 004 Pty Ltd (In Liquidation) (formerly known as Vale Cash Management Fund Pty Ltd) [2021] WASC 161 [48] (Hill J).
The Strike Out Application is made on the ground that the Defence discloses no reasonable defence. As such, pursuant to RSC O 20 r 19(1)(a), no evidence is admissible.
Summary Judgment Application
An application for summary judgment pursuant to RSC O 14 must be supported by an affidavit verifying the facts upon which the claim is based and stating that, in the deponent's belief, there is no defence to the claim.[7]
[7] RSC, O 14 r 2(1).
The legal principles relating to applications for summary judgment are well established. The power to grant summary judgment should be exercised with great care, and summary judgment should only be granted in the clearest of cases where there is no real issue to be tried.
The key principles were summarised by the Court of Appeal in Sutton Investments Pty Ltd v Realistic Investments Pty Ltd as follows:[8]
… Summary judgment will be granted only when there is no real question to be tried. The power to order summary judgment is one that should be exercised with great care: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99. It is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if it went to trial, that summary judgment ought properly be granted: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57]; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [46]; Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [24], [53] - [55].
[8] Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24].
The plaintiff bears the burden of persuading the court that the claim is a good one and there is no defence. If the plaintiff's affidavit in support of the application makes out a prima facie case on these two matters, the evidentiary burden passes to the defendant to show there is an arguable defence or another reason there ought to be a trial.[9]
[9] Westpac Banking Corporation v Anderson [53] - [54], [103].
Disposition
Strike Out Application
I have considered the Defence and the materials filed by the defendant. They make little if any legal sense. Much of what the defendant says and seeks to rely on are not matters recognised by the law that I must apply in determining the Applications.
The Defence filed by the defendant does not disclose any reasonable defence or matters which substantiate an arguable defence to the plaintiff's claim. It includes contentions that the plaintiff has no right to enforce the Loan Agreement, Line of Credit or the Mortgage, and that this court has no jurisdiction and no power or authority to make the orders sought.
The Defence makes a number of assertions which have been described, in other decisions of this court, as 'pseudo-law'[10] and are largely nonsensical. The materials contain broad allegations to the effect that the plaintiff engaged in fraud, did not act in good faith and has been deceptive. No facts are pleaded to support those contentions.
[10] Kelly v Fiander [2023] WASC 187 [10] - [13]. See for example Yap v Matic [No 4] [2022] WASC 422 [23]; Yap v Matic [No 7] [2023] WASC 55 [44] (Solomon J).
The defendant also makes statements to the effect that, because the plaintiff is a 'Dead Corporation' and has not provided 'the Genuine Binding Financial Agreement signed in wet ink', it cannot bring its claim.
The evidence adduced by the plaintiff includes what are deposed to as being true copies of the Loan Agreement and Mortgage signed by the defendant and the terms and conditions that apply to them. As the Court of Appeal stated in Connell v Australia and New Zealand Banking Group Limited,[11] it is sufficient for a bank to produce what is deposed to be a true copy of the original loan agreement signed by all parties to the agreement, without producing 'a wet‑ink signed' document.
[11] Connell v Australia and New Zealand Banking Group Limited [2023] WASCA 48 [24].
The defendant has not filed any affidavit evidence or submissions in response to the Applications that indicate there is any merit to the matters stated in the Defence. The assertions in the material filed by the defendant have no legal or evidentiary basis. They seek to challenge the court's jurisdiction and draw on matters that have been described as 'pseudolaw', as referred to. They have no basis in law and are without merit.
The fact that the Property is under offer is not a defence to the claim.
The Defence discloses no reasonable defence and should be struck out in its entirety, pursuant to RSC O 20 r 19.
Summary Judgment Application
I am satisfied that the plaintiff has complied with the procedural requirements for an application for summary judgment. Alexander Manoel deposes in his affidavit to the facts verifying the claim and to his belief on behalf of the plaintiff that there is no defence to the plaintiff's claim. I am satisfied the plaintiff has made out a prima facie case.
The defendant has been served with the chamber summons, as confirmed by the affidavit of Cassandra Michelle Guy sworn on 29 May 2024.
As I have stated, the documents filed by the defendant disclose no arguable defence and do not indicate he has any defence recognised by law to the plaintiff's claim. The defendant makes many assertions in his material, which have no legal or evidentiary basis and are without merit.
I recognise that summary judgment should only be awarded in the clearest of cases. I am satisfied on the evidence before me, exercising the proper degree of care, that this is such a case, and that it is appropriate to grant summary judgment. In my view, the plaintiff's claim is clearly established on the evidence.
The defendant borrowed money from St George which, by operation of the Financial Sector Business Transfer Act, is payable to the plaintiff. He defaulted on the Loan and Line of Credit, and the plaintiff is entitled to possession of the Property under the terms of the Loan Agreement, Line of Credit Agreement and Mortgage.
The matters referred to in the Defence filed on behalf of the defendant do not disclose any facts that may constitute a genuine or arguable defence to the plaintiff's claim, nor persuade me there is any other good reason why there ought to be a trial of this action.
Summary judgment should be entered for the plaintiff.
Conclusion and orders
For these reasons, I ordered that the defence be struck out in its entirety and judgment be entered for the plaintiff. I made orders on 27 June 2024, as follows:
1.The plaintiff has leave to bring the Strike Out Application and the Summary Judgment Application, the time for which is extended to 10 May 2024 in each case.
2.The defence filed on 5 October 2023 is struck out in its entirety pursuant to Order 20 rule 19(1)(a) of the Rules of the Supreme Court 1971 (WA) (RSC).
3.Pursuant to RSC Order 14 rule 3, judgment is entered for the plaintiff against the defendant.
4.By 25 July 2024, the defendant is to deliver up to the plaintiff vacant possession of all of that land located at 46 Worcester Loop, Butler in the State of Western Australia more particularly described as Lot 502 on Deposited Plan 32984 and being the whole of the land comprised in Certificate of Title Volume 2524 Folio 270.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AP
Associate to Master Russell
8 JULY 2024
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