Westpac Banking Corporation v Cahill - [2024] WASC 246

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…

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: [2024] WASC 246
Decision Date: 8 JULY 2024

CaseChat Overview and Summary

In the case of Westpac Banking Corporation v Cahill, the plaintiff sought summary judgment and leave to strike out the defendant's defence, arguing that it did not disclose a reasonable defence to the claims. The dispute arose from the plaintiff's action to obtain possession of a property, which was secured by a mortgage held by the plaintiff. The defendant had entered into a mortgage agreement with the plaintiff, but defaulted on the loan, prompting the plaintiff's application. The case was heard in the Supreme Court of Western Australia.

The primary legal issues before the court were whether the plaintiff's application for summary judgment and leave to strike out the defence was within the permitted time frame, and whether the defence disclosed a reasonable defence. The court considered the 21-day limit for bringing a summary judgment application and whether the delay in bringing the application was justifiable. The court also examined whether the defence disclosed a reasonable defence, considering the principles set out in Vantage Holdings Group Pty Ltd v Donnelly and affirmed by the Court of Appeal in English v Vantage Holdings Group Pty Ltd.

The court found that while there was a delay in bringing the summary judgment application, it was not undue and was justifiable in the circumstances. The delay did not prejudice the defendant, and the application was still brought at an early stage of the proceeding. The court determined that the defence disclosed a reasonable defence, as it potentially could lead to a defence if the alleged facts were proven at trial. The court refused to strike out the defence on the basis that the plaintiff's case appeared weak. The court held that the principles of pleadings, which aim to narrow the issues and guarantee a fair trial, meant that the defence should not be struck out without careful consideration.

The final orders of the court were that the plaintiff have leave to bring the Summary Judgment Application and the Strike Out Application, but the application to strike out the defence was dismissed. The court's reasoning was based on the evidence presented and the established legal principles regarding pleadings and the purpose of pleadings. The court emphasised the importance of allowing parties to present their cases and the need to avoid striking out pleadings merely because a party's case appears weak.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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. 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.