Westpac Banking Corporation v Farrant - [2024] WASC 300

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   WESTPAC BANKING CORPORATION -v- FARRANT [2024] WASC 300
CORAM:   ACTING MASTER MCDONALD
HEARD:   22 AUGUST 2023
DELIVERED          :   20 AUGUST 2024
FILE NO/S:   CIV 1316 of 2023
BETWEEN:   WESTPAC BANKING CORPORATION
Plaintiff
AND
MEHRZAD FARRANT
Defendant

Catchwords:

Practice and Procedure - Where both plaintiff and defendant brought applications for summary judgment - Where defendant filed further stay application - Whether stay application brought under O 17 r 4 - Whether plaintiff's action is an abuse of process - Defendant's stay application dismissed - Whether defendant's application for summary judgment has merit - Defendant's summary judgment application dismissed - Where plaintiff established a prima facie case that defendant defaulted on Agreements and Mortgage - Where defendant has not produced material which gives rise to any uncertainty - Plaintiff's summary judgment application granted

Legislation:

Corporations Act 2001 (Cth) s 127
Disability Discrimination Act 1992 (Cth)
National Consumer Credit Protection Act 2009 (Cth) Sch 1, s 6(7), s 7
Property Law Act 1969 (WA) s 9, s 10
Rules of the Supreme Court 1971 (WA) O 1 r 3A, O 14 r 1, O 16, O 17 r 4
Transfer of Land Act 1893 (WA) s 130(1)

Result:

Defendant's stay application dismissed
Defendant's application for summary judgment dismissed
Plaintiff's application for summary judgment granted

Category: B

Representation:

Counsel:

Plaintiff	:	T Langdon
Defendant	:	In Person

Solicitors:

Plaintiff	:	Thomson Geer - Perth
Defendant	:	In Person

Cases referred to in decision:

Aquila Steel Pty Ltd v BHP Minerals Pty Ltd [2022] WASC 121
Bank of Western Australia Ltd v Marsh [2000] WASC 208
Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 2] [2021] WASCA 105
Parsons v Momovivo (HK) Ltd [2020] WASC 75
Perpetual Trustee Company Limited v Nikoloff [2020] WASC 389
Perpetual Trustees Victoria Ltd v Burns [2015] WASC 234
RTS Super Pty Ltd v Bagshaw [2019] WASC 81
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
Tobin v Dodd [2004] WASCA 288

ACTING MASTER MCDONALD:

The plaintiff commenced these proceedings by way of writ indorsed with a statement of claim filed on 30 March 2023 (SOC).
The defendant filed a defence and counterclaim on 21 April 2023 (defence and counterclaim).
On 11 May 2023, the plaintiff brought an application for summary judgment by chamber summons pursuant to O 14 r 1 of the Rules of the Supreme Court 1971 (WA)[1] (plaintiff's SJ application).
[1] (the Rules).
In support of its application, the plaintiff relied on:
1.the affidavit of Quang Xuan Ho, a bank officer, affirmed and filed on 11 May 2023 (First Ho Affidavit); and
2.a responsive affidavit of Mr Ho affirmed and filed 8 June 2023 (Second Ho Affidavit).
The defendant filed an application for summary judgment by chamber summons on 18 May 2023 (defendant's SJ application).
On 21 May 2023, the defendant filed a stay application pursuant to O 17 r 4 of the Rules (stay application).
For her applications, the defendant relied on her affidavits:
1.affirmed and filed on 18 May 2023 (First Farrant Affidavit);
2.affirmed and filed on 24 May 2023 in response to the plaintiff's application (Second Farrant Affidavit);
3.affirmed and filed on 19 June 2023 in support of the defendant's SJ application and the stay application, and in response to the plaintiff's application (Third Farrant Affidavit); and
4.affirmed and filed on 2 August 2023 correcting certain information in her previously filed affidavits (Fourth Farrant Affidavit).[2]
[2] Fourth Farrant Affidavit [1].
The three applications were heard at a special appointment on 22 August 2023.
After the hearing and following correspondence with the Court, the plaintiff filed:
1.on 16 May 2024, an amended statement of claim (ASOC); and
2.on 24 May 2024, a further affidavit of Mr Ho (Third Ho Affidavit) which corrected certain matters.
On 22 May 2024, the defendant filed an amended defence which was not marked up to show amendments (amended defence), and a further affidavit (Fifth Farrant Affidavit).
The defendant in these proceedings is self-represented, and some flexibility and allowance must be given when considering her submissions and papers filed due to her lack of legal knowledge. It has been observed in this Court that this approach should be taken to identify the 'true substance of the case which the defendant endeavours to present'.[3] It has been observed that to ensure a fair trial an unrepresented litigant:[4]
… need only plead facts which, if established, would justify the court in granting relief and that he is not obliged to plead or assert the legal significance which he [or she] contends attaches to the alleged facts or any conclusions of law to be drawn from those facts.
[3] Perpetual Trustee Company Limited v Nikoloff [2020] WASC 389 [29] (Perpetual Trustee Company v Nikoloff) per Acting Master Strk, referring to Tobin v Dodd & Ors [2004] WASCA 288 (Tobin v Dodd) [14] ‑ [18] and Perpetual Trustees Victoria Ltd v Burns [2015] WASC 234 [7].
[4] Tobin v Dodd [16].

Background

The defendant is the registered proprietor of the property at Ednah Street, Como in this State, which is more particularly described as Lot 1 on Strata Plan 30692 and being the whole of the land comprised in Certificate of Title Volume 2067 Folio 841 (the Property).[5]
[5] First Ho Affidavit 'WBC-1', 8.
The plaintiff pleaded that under two written loan agreements dated 29 June 2011 (the 2011 Loan Agreements) the plaintiff agreed to lend money to the defendant as lender and credit provider for loans originated by RAMS Financial Group Pty Ltd (RAMS): SOC [3(a)], [4(a)]. Unless a plea has been changed from the SOC to the ASOC, I have continued to refer to pleas made in the SOC as it was at the time of the hearing.
The plaintiff pleaded that under the first loan agreement dated 29 June 2011 (2011 Loan Agreement 4112), it lent $217,000 to the defendant (2011 Loan 4112).[6]
[6] Account number 3534112.
A copy of 2011 Loan Agreement 4112 is annexed to the First Ho Affidavit and marked 'WBC‑2'.
Of some significance to the resolution of the stay application, 2011 Loan Agreement 4112 states on its face that the plaintiff provided the loan originated by RAMS.[7]
[7] First Ho Affidavit 'WBC-2', 9.
The terms of 2011 Loan Agreement 4112 are pleaded to include:
1.the defendant agreed to make 60 monthly interest only repayments during the interest only period and then make 300 monthly principal and interest repayments over the loan term of 30 years: SOC [3(b)];[8]
2.interest on 2011 Loan 4112 is calculated with reference to the 'Basic August 2009 Variable Rate': SOC [3(c)(ii)];[9]
3.2011 Loan 4112 is secured by a first registered mortgage over the Property: SOC [3(d)];[10] and
4.any of the following may be changed by the plaintiff without the defendant's consent:
i.interest rate: SOC [3(e)(i)];
ii.amount, method of calculation, number, frequency or time for payment of repayments, or period over which repayments are to be paid: SOC [3(e)(ii)];
iii.total amount of interest charges or repayments;[11] and
iv.amount and type of fees and charges and when they are payable (including by imposing new fees and charges or changing the method of calculation of a fee or charge).[12]
[8] First Ho Affidavit 'WBC-2', 9.
[9] First Ho Affidavit 'WBC-2', 9; 2011 Loan Agreement 4112 provides that the Basic August 2009 Variable Rate as at 21 June 2011 was 7.16% per annum.
[10] First Ho Affidavit 'WBC-2', 15.
[11] First Ho Affidavit 'WBC-2', 13
[12] First Ho Affidavit 'WBC-2', 13; Although subparagraphs [17(4)(iii)-(iv)] were not pleaded as such in the SOC or ASOC, they are terms which appear from the evidence.
The plaintiff pleaded that under the second loan agreement dated 29 June 2011 (2011 Loan Agreement 4120), it lent $218,000 to the defendant (2011 Loan 4120).[13]
[13] Account number 3534120.
A copy of 2011 Loan Agreement 4120 is annexed to the First Ho Affidavit and marked 'WBC‑3'.
Again, of some significance to the resolution of the stay application, 2011 Loan Agreement 4120 states on its face that the plaintiff provides the loan originated by RAMS.[14]
[14] First Ho Affidavit 'WBC-3', 20.
The terms of 2011 Loan Agreement 4120 are pleaded to include:
1.the defendant agreed to make one interest only repayment followed by 36 monthly repayments of principal and interest followed by 324 monthly repayments of principal and interest at a higher rate over the loan term of 30 years: SOC [4(b)];[15]
2.interest on 2011 Loan 4120 is calculated with reference to the 'Basic August 2009 Variable Rate': SOC [4(c)(ii)];[16]
3.2011 Loan 4120 is secured by a first registered mortgage over the Property: SOC [4(d)];[17] and
4.any of the following may be changed by the plaintiff without the defendant's consent:
i.the interest rate: SOC [4(e)(iii)];
ii.the amount, method of calculation, number, frequency or time for payment of repayments, or period over which repayments are to be paid: SOC [4(e)(iv)];
iii.the total amount of interest charges or repayments;[18] and
iv.the amount and type of fees and charges and when they are payable (including by imposing new fees and charges or changing the method of calculation of a fee or charge).[19]
[15] First Ho Affidavit 'WBC-3', 20.
[16] First Ho Affidavit 'WBC-3', 20.
[17] First Ho Affidavit 'WBC-3', 26.
[18] First Ho Affidavit 'WBC-3', 24.
[19] First Ho Affidavit 'WBC-3', 24; Although subparagraphs [21(4)(iii) - (iv)] were not pleaded as such in the SOC or ASOC, they are terms which appear from the evidence.
The plaintiff pleaded that the 2011 Loan Agreements incorporated the RAMS Home Loan General Terms dated 16 May 2011 (the 2011 General Terms);[20] which were pleaded relevantly to provide:
1.the plaintiff will not lend to the defendant unless the defendant mortgages to the plaintiff the Property as described under the defendant's name in the 2011 Loan Agreements under the heading 'Security': SOC[5(a)];[21]
2.the defendant is in default if, among other things:
i.they do not pay on time any amount due under the 2011 Loan Agreements; or
ii.they do something that they agreed not to do, or do not do something that they agreed to do, under the 2011 Loan Agreements or any other terms or conditions that apply to their account: SOC [5(j)];[22]
3.if the defendant is in default, the plaintiff may give the defendant notice stating that the defendant is in default: SOC [5(k)];
4.if the defendant does not, or cannot, correct the default within any grace period given in the notice (or if the defendant is in default again for a similar reason at the end of that period), then, at the end of that period and without further notice to the defendant, the total amount owing becomes immediately due for payment (to the extent that it is not already due for payment). The plaintiff may then sue the defendant for that amount, or enforce any security, or do both: SOC [5(l)].[23]
[20] First Ho Affidavit 'WBC-4', 31.
[21] First Ho Affidavit 'WBC-4', 35 (clause 5.1(a)).
[22] First Ho Affidavit 'WBC-4', 47 (clause 23.1).
[23] First Ho Affidavit 'WBC-4', 47-48 (clause 24.1).
The 2011 General Terms stated that the plaintiff was the credit provider for loans originated by RAMS.[24] Further, in the definitions section, 'we or us or Lender' was defined to mean the plaintiff.[25]
[24] First Ho Affidavit 'WBC-4', 31.
[25] First Ho Affidavit 'WBC-4', 55 (clause 43).
The plaintiff pleaded that the defendant mortgaged the Property to the plaintiff under a written mortgage dated 29 June 2011, and registered with Landgate on 19 July 2011 with registration number L684005 (Mortgage): SOC [6].[26]
[26] First Ho Affidavit 'WBC-11', 'WBC‑12', 73, 77.
The plaintiff pleaded that the Mortgage expressly incorporated the provisions of Memorandum of Provisions Number L380817 as filed and registered with Landgate (Mortgage Provisions): SOC [7].[27]
[27] First Ho Affidavit 'WBC-13', 81.
Mr Ho annexed two documents described as transaction histories for the 2011 Loan Agreements to the First Ho Affidavit. He deposed that they evidenced the plaintiff's loans to the defendant as pleaded: SOC [8].[28] They also documented that the 'processing date' for each of the principal amounts borrowed under the 2011 Loan Agreements was 18 July 2011.[29]
[28] First Ho Affidavit, [16].
[29] First Ho Affidavit 'WBC-14', 'WBC-15', 90, 96.
As set out below, the plaintiff pleaded that in 2015, and then again in 2020, the parties agreed to certain written variations to the 2011 Loan Agreements.
The plaintiff pleaded that by a written variation agreement dated 10 April 2015, the parties varied 2011 Loan Agreement 4120 (2015 Variation Loan Agreement 4120): SOC [9].[30]
[30] First Ho Affidavit 'WBC‑16', 103.
By 2015 Variation Loan Agreement 4120, it was pleaded that:
1.the plaintiff agreed to lend an additional loan $50,000 to the defendant: SOC [9(a)]; and
2.the defendant agreed to make 317 monthly repayments of principal and interest: SOC [9(b)].
The plaintiff pleaded that 2015 Variation Loan Agreement 4120 was further varied by a written agreement dated 12 May 2020 (2020 Variation Loan Agreement 4120): SOC [10].[31]
[31] First Ho Affidavit 'WBC-18', 122; Third Ho Affidavit [7(b)].
The plaintiff pleaded that by 2020 Variation Loan Agreement 4120, the parties agreed:
1.to convert 2015 Variation Loan Agreement 4120 (being a loan of $256,326.70 at that time) into a RAMS Essential Home Loan product (2020 Loan 4120): SOC [10(a)];
2.the defendant would make 256 monthly repayments of principal and interest over the loan term of 21.33 years: SOC [10(b)];
3.the interest rate would be the Essential Home Loan Variable Rate: SOC [10(c)];
4.2020 Loan 4120 would be secured against the Property: SOC [10(d)]; and
5.to incorporate the RAMS General Terms dated 19 October 2019 (the 2019 General Terms): SOC [10(e)].[32]
[32] First Ho Affidavit 'WBC-19', 133.
The term 'we' is defined in the 2019 General Terms as 'Westpac Banking Corporation and its successors and assigns'.[33]
[33] First Ho Affidavit 'WBC-19', 168 (clause 69); ts 14.
The plaintiff pleaded that 2011 Loan Agreement 4112 was varied by a written agreement dated 8 June 2020 (2020 Variation Loan Agreement 4112): SOC [11].[34]
[34] First Ho Affidavit 'WBC-17', 111; Third Ho Affidavit [7(a)].
The plaintiff pleaded that by 2020 Variation Loan Agreement 4112, the parties agreed:
1.to convert 2011 Loan Agreement 4112 (being a loan of $219,427.32 at that time) into a RAMS Essential Home Loan product (2020 Loan 4112): SOC [11(a)];
2.the defendant would make 255 monthly principal and interest repayments over the remaining loan term of 21.25 years: SOC [11(b)];
3.the interest rate would be the Essential Home Loan Variable Rate: SOC [11(c)]; and
4.2020 Loan 4112 would be secured against the Property: SOC [11(d)];
5.to incorporate the 2019 General Terms: SOC [11(e)].[35]
[35] As at 30 March 2023.
Notwithstanding the plea I have set out at subparagraph [34(5)] immediately above, it appears from the First Ho Affidavit that 2020 Variation Loan Agreement 4112 actually incorporated the RAMS General Terms dated 16 May 2020 (the 2020 General Terms).[36] The 2020 General Terms were not in evidence before the Court before the filing of the Third Ho Affidavit which annexed the 2020 General Terms as Attachment A to that affidavit.
[36] First Ho Affidavit 'WBC-17', 111.
The plaintiff pleaded in the ASOC that it was the 2020 General Terms which were incorporated by agreement into 2020 Variation Loan Agreement 4112: ASOC [11(e)].
The plaintiff pleaded terms of the 2019 General Terms: SOC [12(a)‑(r)]. The plaintiff has not pleaded the terms of the 2020 General Terms in the ASOC.

Default under the 2020 Variation Loan Agreements and Mortgage

The plaintiff pleaded, with particulars, that as at 10 January 2023 the defendant had failed to pay the amounts due and owing under:
1.2020 Variation Loan Agreement 4112; being arrears in the sum of $29,115.14: particulars to ASOC [13];
2.2020 Variation Loan Agreement 4120; being arrears in the sum of $33,793.80: particulars to ASOC [13].
(the 2020 Variation Loan Agreements).
The plaintiff pleaded that the defendant failing to pay those amounts due constituted events of default under the 2019 and 2020 General Terms and a failure under the Mortgage Provisions: ASOC [13(a)‑(b)].[37]
[37] First Ho Affidavit [23].
Although not expressly stated as such in the ASOC, it is tolerably clear that the plea of default under the 2019 General Terms related to 2020 Variation Loan Agreement 4120; and the plea of an event of default of 2020 Variation Loan Agreement 4112 was under the 2020 General Terms.
The plaintiff pleaded that on 12 January 2023, pursuant to clause 27.1 of the 2019 and 2020 General Terms and clause C2 of the Mortgage Provisions, a default notice was sent to the defendant requesting payment of the amount due and owing under the 2020 Variation Loan Agreements by 21 February 2023, being 40 days from the day the notice was sent (the 2023 Default Notice): ASOC [14].
Mr Ho deposed that he was the person who dispatched the 2023 Default Notice and annexed to the First Ho Affidavit a copy of the 2023 Default Notice, together with the registered post slip, marked 'WBC‑20'.[38]
[38] First Ho Affidavit [25] - [26], 'WBC-20', 176.
The plaintiff pleaded, and Mr Ho deposes, that the plaintiff failed to remedy the default specified in the 2023 Default Notice: SOC [15].[39]
[39] First Ho Affidavit [27].
The plaintiff pleaded that pursuant to clause 27.1 of the 2019 and 2020 General Terms, clause C2 of the Mortgage Provisions, and the 2023 Default Notice, the total amount owing under the 2020 Variation Loan Agreements became immediately due and payable on 22 February 2023: ASOC [16].
The plaintiff pleaded that the defendant has failed and continues to fail to pay the amount due and owing under the 2020 Variation Loan Agreements: SOC [17].
The plaintiff further pleaded that, pursuant to clause 27.1 of the 2019 and 2020 General Terms and clause C2 of the Mortgage Provisions, the plaintiff is entitled to possession of the Property and payment of the total amount owing under the 2020 Variation Loan Agreements: ASOC [19].
In bringing the filing of the ASOC to the attention of the Court and the defendant, the plaintiff stated that it was relying only on the default under 2020 Variation Loan Agreement 4120 in its summary judgment application and noted that it was not seeking orders for a monetary judgment. By its sole prayer for relief, the plaintiff seeks:[40]
An order that the Defendant does give up and deliver up to the Plaintiff vacant possession of [the Property].
[40] SOC, Prayer for Relief.
The ASOC continues to seek this order solely by way of relief.

Stay application

I will first consider the stay application.
The defendant purportedly brought the stay application under O 17 r 4 of the Rules.

Stay under O 17 r 4 of the Rules

This basis is misconceived. Order 17 deals with interpleader proceedings. The defendant appears to contend that there may be some difficulty which results from the plaintiff having lent the money to the defendant as credit provider for loans originated by RAMS; although I note, with respect, that the defendant's position was not entirely clear.
In any event, these proceedings are not brought by the plaintiff under O 17, and, therefore, O 17 r 4 is not enlivened. Further, the defendant has not commenced any interpleader proceedings. Consequently, a stay could not be granted under that rule.

In any event, the submission appears to be, or may be, that RAMS and the plaintiff are competing claimants under the 2020 Variation Loan Agreements and the Mortgage Provisions respectively.
At the hearing, the defendant also submitted that she may be pursued separately in New South Wales and Western Australia by the plaintiff and RAMS respectively.
There is nothing before the Court to suggest that RAMS and the plaintiff have made or make competing claims against the defendant. I have identified above that it appears from the contractual paperwork entered into by the defendant that the plaintiff was the lender. There has been no articulation of how it might be that RAMS would have a separate or competing claim against the defendant.
The defendant also submits there is a risk that claims could be made in or under two different jurisdictions, as the 'Applicable Law' clause in the RAMS General Terms provides that the applicable law to the loan agreements was the law in force in New South Wales;[41] whereas the Mortgage Provisions[42] provided that the Mortgage was governed by the law of the State where the property was situated; which, here, would be Western Australia.
[41] First Ho Affidavit 'WBC‑4', 'WBC‑19', 53, 165; ts 11.
[42] First Ho Affidavit 'WBC-13', 81.
Three things may be noted in response to this:
1.there is nothing to suggest that the applicable law in New South Wales and Western Australia is relevantly different;
2.that this Court may apply the law of another jurisdiction does not detract from this Court's jurisdiction, as in its power to hear and determine the matter; and
3.neither of the provisions identified by the defendant purported to be exclusive jurisdiction clauses such as would give rise to an arguable question as to this Court's exercise of its (undoubted) jurisdiction. As the plaintiff said, the defendant and the Property are in Western Australia, and there is nothing to suggest that this Court is not the most convenient forum for this proceeding.[43]
[43] ts 14.
There is, consequently, nothing of substance raised by the defendant by this asserted basis.

Stay application in the Court's inherent power

The defendant submitted at the hearing that, assumedly in the alternative, a stay should be granted in the inherent and statutory power of the Court to stay proceedings which are an abuse of process.[44]
[44] ts 12.
There is no doubt that the Court does have power to control its own proceedings and to grant a stay, where that is appropriate, to prevent its processes from being abused. The inherent power of the Court to control the conduct of a proceedings is not affected by the Rules.[45]
[45] O 1 r 3A of the Rules.
The Court of Appeal considered the inherent power of the Court to stay proceedings arising from an abuse of process in Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 2] [2021] WASCA 105 at [161] - [164].[46] I do not repeat the Court's statement of principles here.
[46] See also Aquila Steel Pty Ltd v BHP Minerals Pty Ltd [2022] WASC 121 at [55] - [62].
It appears that a stay in the inherent jurisdiction is sought on the basis that the plaintiff and/or RAMS might pursue the defendant in different jurisdictions.[47] I do not repeat here the reasons above for rejecting that basis for the stay.
[47] Defendant's submissions filed 9 August 2023 (Defendant's submissions) [41] - [42].
The defendant's further submission is that the proceedings ought to be stayed in the court's inherent jurisdiction because:[48]
The plaintiff is in abuse of the judiciary system and the court process due to the fact that the proceeding commenced by the plaintiff is illegitimate, unlawful and illegal to begin with.
[48] ts 12.
I have taken the particulars of these broad claims to be captured in the submissions of the defendant which I set out next.
The stay sought by the defendant is otherwise sought on the basis of the following:[49]
[49] Defendant's submissions [4], [6], [9] - [10], [12] - [17], [39], [43] - [44]; I have understood these submissions as subsuming and replacing the defendant's earlier outline of submissions filed 5 July 2023.
4.The Plaintiff as a duly incorporated company pursuant to the Corporations Act 2001 is in breach and violation of the determined requirements prescribed by the provisions of Section 130 of the Transfer of Land Act 1893(WA) in duly execution of the Mortgage Deed registration number: L684005.
…
6.Section 130 of the Transfer of Land Act 1893 (WA) has made clear that corporations are legally required to affix their common seal onto all documents in substitute for signature for the purpose of Transferring OR apart from that, dealing with ANY land or ANY lease Mortgages or Charge.
…
9.Under the Provisions of Section 130 of the Transfer of land Act 1893(WA), the Plaintiff was obligated according to the requirement of the written law, to execute the Mortgage Deed with the corporation's Common Seal as substitute for signature, however,
a)The Plaintiff did not affix its corporate common seal unto the Mortgage Deed in legal execution of the document according to the requirement of the written law.
b)The Plaintiff instead, unlawfully registered the Mortgage Deed as per determined requirements for those who do NOT operate as a corporation, according to s105 or s182A of the Transfer of Land Act 1893 and under regulation 3 of the Transfer of Land Regulations 2004, which is prohibited, unlawful and illegal for a corporation. (emphases in the original)
10.Therefore, the Mortgage Deed registration number: L684005 is in breach and violation of section 130 of the Transfer of Land Act 1893 (WA) of the written law and is not legally binding. And therefore, it is Void, and Unenforceable.
…
12.The Plaintiff as a duly incorporated company pursuant to the Corporations Act 2001 failed to meet the determined requirements in duly execution of the Mortgage Deed registration number: L684005 pursuant to Provisions of s127 of the Corporations Act 2001 for Execution of documents, including deeds by the company itself.
13.The Mortgage Deed registration number: L684005 is in breach and violation of section 127 of the Corporations Act 2001 and is NOT legally executed. Therefore, it is legally Void and Unenforceable. (emphases in the original).
14.The Plaintiff as a duly incorporated company pursuant to the Corporations Act 2001 is in breach and violation of the determined requirements prescribed by the provisions of section-9 and section-10 of the Property Law Act 1969 (WA), in duly execution of the Mortgage Deed registration number: L684005.
15.The Property Law Act 1969 (WA) states that a 'Deed' maybe described as a deed simply, or as an agreement or as a conveyance which includes mortgages and charges. A Mortgage transaction or a Charge or a Settlement or a Transfer transaction render a document into a deed as per definition. Therefore, a Mortgage Agreement or Contract or a Charge, is defined as a deed as per Property Law Act 1969 definition.
16.By means of the Property Law Act 1969 (WA) definitions, a Mortgage document is identified as an Instrument or a Conveyance or a Deed to be duly executed and registered in accordance with the provisions of laws in force. The definition of a Deed does not alter by the Plaintiff's attempts in misconstruing the Written Laws in order to legitimize its illegal and unlawful conducts in relation to the Mortgage Deed. The Plaintiff's futile attempts are further proof to what extent its prepared to go to, with no regards for the Truth or Justice. The Property Law Act 1969 is a Legislated State Law and in full force that must be satisfied at all times which, the Plaintiff clearly seem to be in contempt of.
17.Therefore, the Mortgage Deed registration number: L684005 is in breach and violation of section 9 and section 10 of the Property Law Act 1969 (WA) of the written laws for noncompliance of the Plaintiff to the determined requirements for lawful execution of the Mortgage Deed. And therefore, Mortgage registration number: L684005 is NOT legally binding and, is Void and Unenforceable.
…
39.The basis to the Defendant's STAY OF PROCEEDINGS Application is the MATTER OF LAW. For the reasons and matters discussed in sections 4 to 28 in the Defendant's Submissions, the Plaintiff as the duly incorporated company pursuant to the Corporations Act 2001, is guilty of breach and violation of the laws listed below in relation to the Cause of Action in this proceeding which renders the Plaintiff's Cause of Action illegal, unlawful and fraudulent and therefore, legally Void, and Unenforceable.
(a)Section 130 of the Transfer of Land Act 1893 (WA)
(b)Section 127 of the Corporation Act 2001
(c)Section 9 and 10 of the Property Law Act 1969 (WA)
(d)Section 53 of the National Credit Code.
…
43.However, unfortunately for WESTPAC BANKING CORPORATION and RAMS Financial Group Pty Ltd, as they are both in breach and violation of section 53 of the National Credit Code in relation to:
a)Entering into a VOID Mortgage Contract with the Defendant and,
b)The usage of a VOID Mortgage Contract to conduct Loan Agreements with the Defendant
WESTPAC BANKING CORPORATION and RAMS Financial group Pty Ltd, therefore, have both lost their powers of default or continuing default regardless of which state therein, as they are both implicated by committing offences of Strict Liability against the Defendant for non-compliance to the determined requirements of the National Credit Law with attached liabilities as per section 6.1 of the Criminal Code.
44.The Defendant, therefore, has made an Application for STAY OF PROCEEDINGS which is within the Supreme Court's Jurisdiction, as per the inherent and the Statutory Power of the Supreme Court to Stay this Proceedings permanently as an ABUSE of process by the Plaintiff. The Plaintiff is in abuse of the Judiciary system and the Court Process, due to the fact that the Proceedings commenced by the Plaintiff is illegitimate, unlawful and illegal to begin with, it is then Oppressive and Vexatious and Unjust, where the use of the Court's Procedure occasions unjustifiable oppression to the Defendant and the use of the Court's Procedure serves to bring the administration of Justice into disrepute.
(all emphases in original).

Section 130 of the Transfer of Land Act 1893 (WA)

Subsection 130(1) of the Transfer of Land Act 1893 (WA) (TLA) provides:
(1)A corporation for the purpose of transferring or otherwise dealing with any land under the operation of this Act or any lease mortgage or charge may in lieu of signing and obtaining the attestation of the instrument for such purpose required affix thereto its common seal.
These contentions, that the Mortgage is void and unenforceable under the TLA, proceed on a misapprehension that the plaintiff was a party to, and obliged to execute, the Mortgage.[50]
[50] Defendant's submissions [4] - [17]; First Farrant Affidavit [11] - [17]; Second Farrant Affidavit [12] ‑ [18]; Third Farrant Affidavit [6] - [28].
The defendant asserts that the 'defect' in execution by the plaintiff rendered the mortgage granted by her, in consideration of the plaintiff's lending, as unenforceable against the defendant. It is difficult to make sense of that proposition, with respect.
The plaintiff submits that there is no legal or factual basis for this assertion as it is:[51]
… predicated on a mistaken belief that the Plaintiff was a party to, and obliged to execute, the mortgage, and [the defendant's failure] to appreciate the effect of sections 85 and 105 of the Transfer of Land Act 1893 (WA) and regulation 3 of the Transfer of Land Regulations 2004 (WA) …
[51] Plaintiff's submissions filed 12 July 2023 (Plaintiff's submissions) [18.3].
The plaintiff submits in short that:[52]
… [the plaintiff] is not a party to, and is not required to execute, the mortgage instrument. It was validly executed by the Defendant as mortgagor, and was registered against the title of the Property.
[52] Plaintiff's submissions [20].
I accept that submission.
The defendant's submissions proceed on a further misapprehension as to s 130 of the TLA. The defendant seeks to read the provision as imposing a requirement. On its face, however, the provision is facilitative which follows from the word 'may', and is not mandatory.

Section 127 of the Corporations Act 2001 (Cth)

The short answer to this issue is, again, that the plaintiff was not required to, and did not, execute the Mortgage and so, whatever the requirements of s 127 of the Corporations Act2001 (Cth) (Corporations Act) are said to be by the plaintiff, they are irrelevant to the Mortgage.
Further, it is unclear how the plaintiff's failure to meet the 'requirements' of s 127 of the Corporations Act impact the validity or enforceability of the Mortgage.
Again, I do not consider that there is anything in this complaint.

Sections 9 and 10 of the Property Law Act 1969 (WA)

Leaving aside the somewhat dramatic hyperbole in the defendant's submissions concerning ss 9 and 10 of the Property Law Act 1969 (WA) (PLA), they suffer from the same misapprehension as her submissions concerning the 'requirements' of the TLA and Corporations Act.
The answer is that the 'requirements' of ss 9 and 10 do not have application to the plaintiff, nor impose a requirement that it execute the Mortgage. There is no substance, with respect, in the complaints made by the defendant with reference to ss 9 and 10 of the PLA.
In those circumstances, I do not need to consider whether the Mortgage was a 'deed' within the meaning of ss 9 and 10 of the PLA. Without determining the issue, my preliminary view is that, against the defendant's submissions, the Mortgage was not a 'deed' within the meaning of those sections of the PLA.[53]

Section 53 of the National Credit Code

[53] PLA s 7; TLA ss 85 and 127A.

The defendant submits that the plaintiff has breached s 53(2) of the National Credit Code[54] by the Mortgage not being properly executed and therefore being void and unenforceable.[55]
[54] National Consumer Credit Protection Act 2009 (Cth) Sch 1.
[55] Defendant's submissions [21] - [28].
As appears from the defendant's outline of submissions filed 9 August 2023, the defendant's allegation as to a breach of s 53 of the National Credit Code is based in the asserted failure of the plaintiff to lawfully execute the Mortgage by reference to the requirements of s 130 of the TLA, s 127 of the Corporations Act, and ss 9 and 10 of the PLA.[56] It follows from my consideration and disposition of those matters above, that I do not consider they provide any basis for the submission that there has been such a breach of the National Credit Code.
[56] Defendant's submissions [21].

Disposition of the stay application in the Court's inherent power

For the reasons set out above, I dismiss the stay application as there is no substance in any of the matters raised and the plaintiff's action is not an abuse of the processes of this Court.

Summary judgment - legal principles

The legal principles governing the power to order summary judgment were summarised by the Court of Appeal in Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14:
The principles to be applied on an application for summary judgment are well-established. 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].

Defendant's SJ application

The defendant's SJ application purports to be brought pursuant to O 16 of the Rules.
By the defendant's counterclaim filed 21 April 2023, the defendant sought orders:
1.An order to the Plaintiff to remove the Unlawful Instrument of Death, the Mortgage (Registration Number L684005) from Landgate Perth, Western Australia registry that was lodged against the Defendant Property at 1/8 Ednah St, Como, WA 6152 on 19 JUL 2011 and, to release the Certificate of Title to the Property to the Defendant.
2.An order to make payable by the Plaintiff to the Defendant all funds contributed by the Defendant towards the Null and Void Mortgage (Registration Number L684004) since July 2011 which mounts to estimated sum of $230,000.00.
3.Costs[.]
The defendant's SJ application seeks the following orders:
A.The True Original Copy of the Mortgage Deed Registration Number: L684005 to be forensically inspected under Order 26 Rules Of The Supreme Court 1971 (WA) if the Plaintiff claims to be in possession of it.
B.The Plaintiff to be put under Interrogation under Order 27 Rules Of The Supreme Court 1971 (WA) and under Penalties of Perjury with unlimited Liabilities to confirm the origins of the Credit to the finance provided to the Defendant which was secured by the Mortgage Deed Registration Number: L684005.
The Plaintiff to confirm whether the Credit for the finance provided to the Defendant originated from WESTPAC BANKING CORPORATION own funds, WESTPAC BANKING CORPORATION Investors funds, or the Defendant's Birth Certificate Trust Funds.
C.Summary Judgment be granted in favour of the Defendant.
D.The Plaintiff's claim be dismissed.
E.The Plaintiff removes Mortgage Registration Number.L684005 from Landgate Perth, Western Australia registry lodged against the Defendant's property at 1/8 Ednah Street, Como, WA 6152, and releases the Certificate of the Title to the property to the Defendant.
F.The Plaintiff returns and compensates all funds contributed by the Defendant towards the Mortgage Deed Registration Number: L684005 to the Defendant.
G.The Plaintiff pays the Defendant's costs on the Defence.
While purportedly brought pursuant to O 16 of the Rules, I have treated the defendant's SJ application as extending to the relief sought in her counterclaim as quoted above.
Notwithstanding that I am considering this as including an application for summary judgment on the counterclaim, to avoid any confusion I will continue to refer to Ms Farrant as the defendant and Westpac Banking Corporation as the plaintiff in these reasons.
There does not appear to be a bright line separating the defendant's contentions in support of her stay application and in support of her SJ application. By parity of reasoning, I would dismiss all of the bases put by the defendant in support of the stay application to the extent that any are relied upon in her SJ application.
The following may be distinct and discrete grounds for the defendant's SJ application:[57]
[57] Defendant's submissions [29] - [35], [37].
29.It is the fact that MORTGAGE translates to DEATH PLEDGE in French language. Mort-Death, gage- Pledge.
Black's Law Dictionary 2nd Edition defines Mortgage as: Mors omnia solvit. Death dissolves all things. Jenk. Centp.160, case 2. Applied to the case of the death of one party to an action.
30.The Mortgage contract was conveyed unto the Defendant in English language. However, the Plaintiff utilised a word in French language unbeknown to the Defendant, to conceal the meaning of the word MORTGAGE from the Defendant. The fact is that the Plaintiff knew full well, NO ONE would ever buy themselves a DEATH PLEDGE Therefore, the Plaintiff resorted to Conveyance of Fraudulent Language and used a French word to define the document, to conceal its meaning in the contract which is in violation of Contract Laws rendering the document a Fraud and Null and Void.
31.It is the fact that contracts are not Valid and therefore, Void, and unenforceable if one party to the contract deliberately or even if the representation was made without knowledge of the matter, resulting into Fraudulent Misrepresentation. It is the fact that entering into the Mortgage contract is to pledge one's own death verbally and on the paper by definition. To conceal the Defendant's declaration of her own Death Pledge by signing on the Mortgage document, which was perpetuated unto the Defendant by the Plaintiff by misleading and deceptive conduct and through usage of the disabling language, withholding information such as the fact that the Mortgage was the Death Pledge and as an obligation for the Defendant to receive finance, the Plaintiff committed Fraudulent Misrepresentation to induce the Defendant into the contract which is in violation of Contract Law and therefore, rendering the Mortgage contract Null and Void.
32.The Defendant did NOT sign on her own Death Pledge knowingly, willingly, or consciously, had she known the True meaning of the word Mortgage, which was designed to strip the Defendant's life commercial energy through the bonded Slavery contract to the time of death by the Plaintiff, which has caused the Defendant enormous amount of pain and despair and anxiety. The Mortgage is an instrument of Death and Sin and is even forbidden and in violation of Maritime Admiralty Laws which must also ensure mankind does NOT live in Sin.
33.Therefore, the Defendant took upon herself to correct the wrong and declared and registered herself as the Living Woman that she is with the Coroner's Court of Western Australia on 27 April 2022 with her Autograph, the Creator Seal, which is her Thumb Print, which belongs to the Defendant's body, heart, and soul only, and her Words in writing. The Defendant hereby declares to this Court that the Mortgage Deed registration number: L684005 is additionally an Unconscionable Contract which was conducted through Language Fraud and Misrepresentation by the Plaintiff, therefore, is in violation of Contract Laws and Australian Consumer Laws sections 18, 19, 20, 21, 22, 151 and 154, and is, Null and Void.
34.The Plaintiff is to confirm under Penalties of Perjury with Unlimited Liabilities the source and true origin of the funds made available to the Defendant through the Mortgage contract and the Loan Agreements, as per Orders sought by the Defendant through the Summary Judgement Application filed on 18 May 2023.
35.It is the fact that WESTPAC BANKING CORPORATION does not lend its own funds or credit or its Investors funds or credit to the customers. However, the Plaintiff Implied and Misrepresented itself through Loan Agreement documents to be the originating LENDER under False Pretences, and dictated Terms and Conditions for the Loan Agreements repayments in principal and interest, instead of, identifying itself TRUTHFULLY as the Credit Service Provider and charging accordingly, as the Service Provider and NOT as an Original Lender for the funds made available to the Defendant, which was originated from the Defendant's own Birth Certificate Trust Fund Credit Line and, NOT from Westpac Banking Corporation's own pocket.
…
37.Therefore, the Mortgage was Void at Law from the onset because the Plaintiff withheld information and, defrauded the Defendant to believe that the Plaintiff was Lending the Defendant its own money. By LYING and MISREPRESENTING to be the originating Lender and demanding to be paid back not only the [burrowed] [sic] sum but also the interest on the [burrowed] [sic] sum from the Defendant, the Plaintiff practiced [sic] locking the Defendant into a Slavery contract, therefore. Falsehood is in violation of Contract Laws, rendering the Mortgage contract Null and Void.
(all emphases in original).

I leave aside any further comment about the nonsensical proposition as to the supposed or asserted meaning of the word 'mortgage'. On a careful reading of the defendant's submissions, including those quoted, and her 'supporting' affidavits, I can discern nothing which suggests that the plaintiff engaged in, or that the defendant has suffered from, any fraud, misleading and deceptive conduct, or fraudulent misrepresentation as asserted, whether pursuant to the general law or pursuant to statute.
In other materials before the Court, the defendant asserted unconscionable conduct on the part of the plaintiff as the plaintiff's language in the contractual documents violated the Disability Discrimination Act 1992 (Cth).[58] It appears that is no longer pursued by the defendant.[59]
[58] Defence and counterclaim [6]; First Farrant Affidavit [21] - [30]; Second Farrant Affidavit [40] - [47]; Third Farrant Affidavit [67] - [68].
[59] Fourth Farrant Affidavit [2].
To avoid any doubt, I have considered the submissions made by the defendant to the effect that the Mortgage was:
1.a bonded slavery contract;
2.an instrument of death and sin;
3.in violation of 'Maritime Admiralty Laws';
4.unenforceable because the plaintiff had not lent its own money; and
5.unenforceable because the loan funds had come from the defendant's own 'Birth Certificate Trust Fund Credit Line'.
In my judgement none of the above makes any legal sense and, in the case of subparagraphs [92(4) - (5)] immediately above, is inconsistent with the unchallenged evidence. None of the above therefore provides a basis for the defendant to succeed in her SJ application.
Each of the 2011 Loan Agreements, 2015 Variation Loan Agreement 4120, and the 2020 Variation Loan Agreements described the plaintiff by name and ABN as credit provider for loans originated by RAMS Financial Group Pty Limited ABN 30 105 207 538.[60] Further, the term 'we' was defined, as I noted above, as 'Westpac Banking Corporation and its successors and assigns'.[61]
[60] First Ho Affidavit 'WBC-2', 'WBC-3', 'WBC-16', 'WBC-17', 'WBC-18', 9, 20, 103, 111, 122.
[61] See, for example, First Ho Affidavit 'WBC-19', 168 (clause 69); ts 14.
The defendant referred to s 7 of the National Credit Code in her submissions and referred to defined terms contained in ss 6(7) including 'promissory note', 'bill facility', and 'credit provider'.[62]
[62] Defendant's submissions [36].
Subsection 6(7) of the National Credit Code provides as follows:[63]
Bill facilities
(7)This Code applies to the provision of credit arising out of a bill facility, that is, a facility under which the credit provider provides credit by accepting, drawing, discounting or endorsing a bill of exchange or promissory note. However, it does not apply if:
(a)the credit is provided by an authorised deposit‑taking institution (within the meaning of subsection 5(1) of the Banking Act 1959); or
(b)the regulations provide that the Code does not apply to the provision of all or any credit arising out of such a facility.
[63] Defendant's submissions [36]; ts 13.
On the evidence, the plaintiff did not provide credit by accepting, drawing, discounting or endorsing a bill of exchange or promissory note.
In any event, the question is not whether the National Credit Code applies, but rather whether the defendant has pointed to some breach of it which would entitle her to succeed in her SJ application, or give rise to a triable issue which would defeat the plaintiff's SJ application.
In my judgement, the defendant has done neither with respect to the National Credit Code.
For the above reasons, I dismiss the defendant's SJ application.

Plaintiff's SJ application

I now turn to consider the plaintiff's SJ application.
An application for summary judgment must be brought within 21 days of the appearance or any later time by leave of the Court.[64] The defendant filed a memorandum of appearance on 20 April 2023. The plaintiff's SJ application was filed on 11 May 2023.
[64] O 14 r 1(1) of the Rules.
I stated the relevant legal principles above in relation to the defendant's SJ application.
In considering the plaintiff's SJ application, I have treated each of the matters raised by the defendant in her stay and SJ applications as being effectively put by her against the plaintiff's SJ application. For the avoidance of doubt, I do not consider any of the matters raised by the defendant in her stay or SJ application gives rise to a triable issue which should result in the plaintiff's SJ application not succeeding.
Acting Master Whitby (as her Honour then was) in Parsons v Momovivo (HK)Ltd [2020] WASC 75 stated that:[65]
Once the [party seeking summary judgment] has established a prima facie right to judgment, the onus is on the [party opposing summary judgment] to satisfy the court why judgment should not be given. The [party opposing summary judgment] does not have to show a defence on the balance of probabilities only to show cause as to why there is an arguable defence.
[65] Parsons v Momovivo (HK)Ltd [2020] WASC 75 [20].
Annexed to the First Ho Affidavit are transaction listings that Mr Ho depose record money being loaned from the plaintiff to the defendant pursuant to the 2011 Loan Agreements and subsequent variations.[66] The defendant has not disputed the transaction histories nor denied receipt of the lent funds or benefit under the various loan agreements.
[66] First Ho Affidavit [16]; SOC [8].
The defendant also made the following concession in her submissions:[67]
The Defendant acknowledges the fact that she entered into a Mortgage contract with the Plaintiff and Loan Agreements with RAMS Financial Group Pty Ltd in 2011. The defendant does not believe in Plausible deniability; she believes in Justice.
(emphasis in original).
[67] Defendant's submissions [52(a)].
The defendant also concedes that the Property was mortgaged in 2011:[68]
The Property was mortgaged with the Plaintiff through RAMS Financial Group Pty Ltd upon a refinance for $435,000.00 on 18 July 2011.

(Mortgage Number: L684005)[.]
[68] Second Farrant Affidavit [54(E)].
I do not repeat here the matters I set out in paragraphs [12] to [45] above. For the avoidance of doubt, I consider each of the pleaded factual matters to be verified by the evidence relied upon by the plaintiff.
It appears from the material that the defendant, at the time of executing the Mortgage and the 2011 Loan Agreements, signed various acknowledgements and warranties either confirming her understanding of the documents and/or right to obtain legal and financial advice. The plaintiff referred me to a number of documents annexed to the First Ho Affidavit including:
1.an acknowledgement that the plaintiff recommended to the defendant that she obtain legal advice in respect to the 2011 Loan Agreements and the Mortgage, but she elected not to, signed by the defendant and dated 29 June 2011;[69]
2.an acknowledgement that the plaintiff recommended to the defendant that she obtain financial advice in respect to the 2011 Loan Agreements and the Mortgage, but she elected not to, signed by the defendant and dated 29 June 2011;[70]
3.a mortgagor's certificate that states the defendant read all the terms and conditions of the 2011 Loan Agreements and that she understood the nature and effect of the 2011 Loan Agreements and her obligations under them, signed by the defendant and dated 29 June 2011;[71] and
4.a cross collateralisation acknowledgement that the 2011 Loan Agreements are covered by the Mortgage signed by the defendant and dated 29 June 2011.[72]
[69] First Ho Affidavit 'WBC-5', 64.
[70] First Ho Affidavit 'WBC-6', 65.
[71] First Ho Affidavit 'WBC-8', 67.
[72] First Ho Affidavit 'WBC-9', 69.
Further, as to the 2020 Variation Loan Agreements, I note the following:
1.copies of the 2020 Variation Loan Agreements were annexed to the First Ho Affidavit bearing the defendant's signature;
2.the defendant has not challenged the validity of her signature on the 2020 Variation Loan Agreements in her written or oral submissions;
3.on the final page of each of the 2020 Variation Loan Agreements, above the signature of the defendant, reads 'Do not sign this contract document if there is anything you do not understand';[73]
4.annexed to the First Ho Affidavit are transaction listings that Mr Ho deposed showed repayments made by the defendant into the respective accounts for each of the 2020 Variation Loan Agreements and that show:
i.the defendant's signature on 2020 Variation Loan Agreement 4112 is dated 8 June 2020 and repayments were subsequently made into the account ending in 4112 between 29 June 2020 and 28 October 2021;[74] and
ii.the defendant's signature on 2020 Variation Loan Agreement 4120 is dated 12 May 2020 and repayments were subsequently made into the account ending in 4120 between 1 June 2020 and 28 October 2021.[75]
5.repayments made into the account ending in 4112 between 29 June 2020 and 1 December 2020 were made in approximately the same value and in the approximately the same frequency as the monthly principal and interest repayments provided for in 2020 Variation Loan Agreement 4112; and
6.repayments made into the account ending in 4120 between 1 June 2020 and 1 December 2020 were made in approximately the same value and in the approximately the same frequency as the monthly principal and interest repayments provided for in 2020 Variation Loan Agreement 4120;
[73] First Ho Affidavit 'WBC-17', 'WBC-18', 121, 131.
[74] First Ho Affidavit 'WBC-14', 90.
[75] First Ho Affidavit 'WBC-15', 96.
I find that the plaintiff has at least established a prima facie case that the defendant has defaulted under the 2020 Variation Loan Agreements and the Mortgage. The plaintiff has put into evidence the agreements and notices referred to and has verified the basis for the relief sought.
In Perpetual Trustee Company v Nikoloff, Acting Master Strk (as her Honour then was) summarised the threshold that a respondent to a summary judgment application must meet to demonstrate an arguable defence as follows:
An application for summary judgment is to be determined on the basis that the version of facts put forward by the respondent to the application, assuming that it is not inherently incredible, would ultimately be accepted at the trial of the action. The court is not bound to accept uncritically as raising a dispute of fact calling for further investigation every statement in an affidavit, however equivocal, lacking in precision or inconsistent with contemporary documents or other statements by the deponent. If after argument there remains real uncertainty as to the applicant's right to judgment without further investigation of the facts, summary judgment must be refused.[76]
(citations omitted).
[76] Perpetual Trustee Company v Nikoloff [14].
I have no such uncertainty. The defendant has put no material before the Court which gives rise to any uncertainty. For the reasons I have outlined above, the plaintiff's SJ application should succeed.

Costs

The plaintiff submits that the defendant should pay its costs of the proceeding on a solicitor and client basis, in accordance with clause B1 of the Mortgage Provisions and clause 18.1(c) of the 2019 General Terms.[77]
[77] Plaintiff's submissions [32] referring to RTS Super Pty Ltd v Bagshaw [2019] WASC 81 [40]-[41] and Bank of Western Australia Ltd v Marsh [2000] WASC 208.
If the parties cannot agree, I will determine the costs of the applications and proceeding on the papers after further short written submissions of no more than five pages.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
YM
Associate to Acting Master McDonald
20 AUGUST 2024