Westpac Banking Corporation v Figliomeni
[2024] WASC 292
•15 AUGUST 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: WESTPAC BANKING CORPORATION -v- FIGLIOMENI [2024] WASC 292
CORAM: MASTER RUSSELL
HEARD: 13 AUGUST 2024
DELIVERED : 15 AUGUST 2024
FILE NO/S: CIV 1017 of 2023
BETWEEN: WESTPAC BANKING CORPORATION
Plaintiff
AND
ANNA LIEZYL BUBULI FIGLIOMENI
Defendant
Catchwords:
Practice and procedure - Summary judgment - Mortgage action - Application for possession of property - Turns on own facts
Practice and procedure - Summary judgment - Application for leave to apply for summary judgment pursuant to O 14 r 1 of the Rules of the Supreme Court 1971 (WA) - Strength of the plaintiff's case - Where strict compliance with the court rules would work an injustice on the party seeking leave to apply out of time - 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
Result:
Application granted
Summary judgment entered for the plaintiff
Order for possession of mortgaged property
Category: B
Representation:
Counsel:
| Plaintiff | : | Ms P A Honey |
| Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Minter Ellison |
| Defendant | : | No appearance |
Cases referred to in decision(s):
Cologna Investments Pty Ltd as trustee for the P. and D. Panizza Family Trust v Caranna [2023] WASC 368
Connell v Australia and New Zealand Banking Group Limited [2023] WASCA 48
Deputy Commissioner of Taxation v Lafferty [2017] WASC 257
Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Kelly v Fiander [2023] WASC 187
Kelly v Fiander [2024] WASC 275
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109
MTI v SUL [No 2] [2010] WASCA 58
Rural Bank (A Division of Bendigo and Adelaide Bank Limited (ACN 068 049 178) v Manolini [2019] WASC 313
Smart v Prisoner Review Board (WA) [2012] WASC 48
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
Wallingford v Mutual Society (1880) 5 App Cas 685
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
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, Anna Liezyl Bubuli Figliomeni, is the registered proprietor of the land described as Lot 83 on Deposited Plan 404715, being the whole of the land contained in Certificate of Title Volume 2872, Folio 293 and known as 4571 West Swan Road, West Swan in the State of Western Australia (Property).[1]
[1] Affidavit of Rosemary Lemmens affirmed on 14 March 2024 [5], 'RL-1'.
By chamber summons filed on 14 March 2024, the plaintiff, Westpac Banking Corporation, applied for summary judgment against the defendant pursuant to O 14 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC) (Application). I heard the Application on 13 August 2024.
The defendant filed no evidence in opposition to the Application, despite having had a significant amount of time in which to do so.
Having considered the affidavits filed in support of the Application, the submissions made on behalf of the plaintiff and the defence filed by the defendant, I was satisfied that:
(a)the plaintiff has complied with the procedural requirements for an application for summary judgment and has made out a prima facie case;
(b)the defence filed by the defendant does not disclose any defence recognised by law to the plaintiff's claim;
(c)the defendant has not discharged her evidentiary burden of establishing that there is an issue or question to be tried, or some other reason why there ought to be a trial of the action; and
(d)this is a clear case in which it is appropriate to enter summary judgment.
I gave brief reasons for my decision at the hearing on 13 August 2024 and made orders extending the time to bring the Application, entering judgment for the plaintiff and that the defendant deliver up possession of the Property to the plaintiff by 10 September 2024.
I said I would publish more detailed reasons for my decision. These are those reasons.
Procedural overview
The plaintiff commenced this proceeding against the defendant on 11 January 2023, seeking orders for possession of the Property pursuant to the terms of a written loan agreement and mortgage.
On 5 April 2023, after repeated unsuccessful attempts to effect personal service of the writ of summons on the defendant,[2] the plaintiff applied for orders for substituted service pursuant to O 72 rr 1(2) and 4 RSC.
[2] Affidavits of attempted service of Shane Hedley Shaw of writ of summons on Anna Liezyl Bubuli Figliomeni sworn on 30 January 2023 and 9 March 2023.
Orders were made on 6 April 2023 for substituted service on the defendant of the writ of summons and Form 4 notice for possession, foreclosure or sale of mortgaged property.
TGC Lawyers entered an appearance on behalf of the defendant on 30 May 2023. That firm remained on the record as the solicitors representing the defendant until a notice of change of representation was filed on 27 June 2024. Since that time the defendant has been self-represented.
A statement of claim was filed on 6 June 2023.
On 7 July 2023, orders were made for the filing of any defence by the defendant. Further case management orders were made on 12 December 2023, by a registrar of the court, (relevantly) as follows:
1.The defendant has liberty to file a defence, which must be filed and served by 29 January 2024.
2.If a defence is filed, the plaintiff has liberty to file a reply, which must be filed and served by 12 February 2024.
3.The plaintiff has leave, pursuant to Order 14, Rule 2 (sic) of the Rules of the Supreme Court 1971 (WA), to make an application for summary judgment (if any), which application must be filed and served by 15 March 2024.
A document titled, 'Statement of Defence to Statement of Claim' dated 18 January 2024 (Defence) was filed by or on behalf of the defendant on 19 January 2024.
The plaintiff filed the Application on 14 March 2024.
The plaintiff requires leave to bring the Application as it was not made within 21 days of the defendant entering an appearance, as required by O 14 r 1 RSC. I will address this in further detail later in these reasons.
The hearing of the Application
The defendant did not attend the hearing of the Application. Mr Nicola Figliomeni, who introduced himself as the defendant's husband, sought to appear or speak on behalf of the defendant, stating she was unable to attend due to work commitments. The defendant has been on notice of the hearing of the Application since it was listed for hearing on 11 July 2024. No application was made by the defendant to adjourn the hearing of the Application.
I did not grant leave for Mr Figliomeni to appear or speak on behalf of the defendant. There was no legitimate basis upon which I could do so. Mr Figliomeni is not a party to the proceeding. He stated that he had a power of attorney for the defendant. There is no evidence before the court of any power of attorney. In any event, as observed by Kenneth Martin J in Rural Bank (A Division of Bendigo and Adelaide Bank Limited (ACN 068 049 178) v Manolini:[3]
59First, and most fundamentally, a power of attorney even if validly granted does not authorise any person who is not a duly certificated legal practitioner to speak at court on behalf of the person granting the power of attorney. See Waddington v Dandenong Magistrates' Court [2014] VSCA 12 [7]; Giniotis v Farrugia (Unreported, NSWCA, BC 8500603, 19 August 1985, page 3).
60 Second, and correlatively, a valid power of attorney might, at best, authorise the attorney so appointed to instruct a duly certificated legal practitioner to appear at court on behalf of the grantor of the power, whilst otherwise affording no rights to the donee to institute legal proceedings personally.
[3] Rural Bank (A Division of Bendigo and Adelaide Bank Limited (ACN 068 049 178) v Manolini [2019] WASC 313 [59] - [60].
I was satisfied that the defendant had been served with the Application and supporting affidavits and given notice of the hearing of the Application. I proceeded to hear the Application in the absence of the defendant. Mr Figliomeni remained in court in the public gallery.
The court's jurisdiction to hear and determine the Application
The Defence contends that the court has no jurisdiction or standing in this matter. The statements made in that document have no basis in law and make no legal sense.
Notwithstanding the defendant's position as to the lack of this court's jurisdiction, an unconditional appearance was entered and filed on her behalf on 30 May 2023. The defendant entered a notice of change of representation on 27 June 2024 and has filed the Defence.
I am satisfied that the court has jurisdiction in this matter and to hear and determine the Application.
The plaintiff's claim and evidence relied upon
In essence, the plaintiff claims that the defendant is in default of the terms of a loan agreement and mortgage she entered into with the plaintiff, and that it is entitled to possession of the Property.
In support of the Application, the plaintiff read and relied on:
(a)an affidavit affirmed by Rosemary Lemmens on 14 March 2024 (Lemmens Affidavit);
(b)an affidavit affirmed by Ben Gordon Da Silva on 14 March 2024 (Da Silva Affidavit); and
(c)an affidavit of Bradley Edward Chard affirmed on 6 August 2024 (Chard Affidavit).
The plaintiff also filed the following affidavits verifying service of the Application and supporting affidavits on the defendant and her former lawyers:
(a)affidavit of Chie Alice Croft sworn on 22 March 2024; and
(b)affidavit of service sworn by Samantha Gee-Clark on 25 March 2024.
The plaintiff also relied on an outline of submissions filed on 23 April 2024.
The Defence and documents relied upon by the defendant
As stated, the defendant entered an appearance to the plaintiff's claim on 30 May 2023. On 19 January 2024, the defendant filed the Defence. I consider the Defence later in these reasons.
Orders were made on 2 April 2024 requiring the defendant to file and serve any affidavits she intended to rely upon in defence of the Application by 16 April 2024, and any written submissions by 23 April 2024. Orders were also made that there be liberty to apply in relation to the times specified in those orders.
The defendant has not filed any affidavits or submissions in opposition to the Application in accordance with the orders made on 2 April 2024. No formal application was made by or on behalf of the defendant to extend the time for compliance with those orders. There has been ample time to do so in the four months that have elapsed between the orders being made and the date of the hearing of the Application.
Procedural requirements and applicable legal principles
Procedural requirements
An application for summary judgment pursuant to O 14 RSC 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.[4]
[4] O 14 r 2(1) RSC.
An application for summary judgment must be brought within 21 days after an appearance has been filed, or a later time with leave of the court.[5]
[5] O 14 r 1(1) RSC; Cologna Investments Pty Ltd as trustee for the P. and D. Panizza Family Trust v Caranna [2023] WASC 368 [27].
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 leave is required to bring the application out of time, the onus is on the applicant to demonstrate that the delay is justifiable in the circumstances. Any prejudice to the other party caused by the delay and the prospects of the application are also relevant factors.[6]
[6] Westpac Banking Corporation v Anderson [2017] WASC 106 [38] (Pritchard J) and the authorities referred to.
In Gallo v Dawson,[7] McHugh J said, in the context of leave to extend time to appeal:
The discretion to extend time is given for the sole purpose of enabling the Court of Justice to do justice between the parties. This means that the discretion can be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant and refusal of the application for the extension of time.
Applicable legal principles
[7] Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458, 459.
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,[8] as follows:
… 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 legal burden of persuading the court that its claim is a good one and that there is no defence to it. If the plaintiff's affidavit or affidavits in support of the application make out a prima facie case on these two matters, the evidentiary burden passes to the defendant to show there is an arguable defence or some other reason there ought to be a trial of the action.[9]
[9] Westpac Banking Corporation v Anderson [53] - [54], [103]. See also Deputy Commissioner of Taxation v Lafferty [2017] WASC 257 [54] (Tottle J) and the authorities referred to.
A defendant seeking to demonstrate an arguable defence or some other reason why there ought to be a trial must condescend to particulars and provide sufficient details of their defence.[10]
[10]Deputy Commissioner of Taxation v Lafferty [54] citing Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109 (Brinsden J), 113; Wallingford v Mutual Society (1880) 5 App Cas 685, 704 (Lord Blackburn).
The facts relevant to the plaintiff's claim and the Application
The following facts, as verified by the Lemmens Affidavit and the Da Silva Affidavit and the attachments to them, make up the essential elements of the plaintiff's claim.
On 5 March 2015, the plaintiff and the defendant entered into a loan Agreement for a Rocket Investment Loan (Loan Agreement),[11] pursuant to which the plaintiff agreed to lend $656,000 to the defendant (Loan) and the defendant agreed to repay the Loan to the plaintiff, in accordance with the terms and conditions of the Loan Agreement.[12]
[11] Lemmens Affidavit [6], 'RL-2'.
[12] Lemmens Affidavit [6] - [7], 'RL-2'.
The terms and conditions of the Loan Agreement are set out in the plaintiff's Loan Offer dated 5 March 2024 (Loan Offer) and attached booklet. The booklet contains the plaintiff's loan contract terms and conditions, including the general terms and conditions (General Terms and Conditions).[13]
[13] Lemmens Affidavit [6], 'RL-2'.
The plaintiff advanced the Loan amount of $656,000 to the defendant on 8 July 2015.[14]
[14] Lemmens Affidavit [8], 'RL-3'.
On 16 June 2015, as security for the Loan, the defendant executed a mortgage over the Property in favour of the plaintiff, which was registered on 9 July 2015 and given Landgate registration number N057728 (Mortgage).[15]
[15] Lemmens Affidavit [9], 'RL-4'.
The mortgage incorporated, by reference, the terms and conditions contained in the memorandum of common provisions, a copy of which is registered with Landgate under registered number L380817 (Memorandum).[16]
[16] Lemmens Affidavit [10], 'RL-5'.
Under the terms of the Loan Agreement, as set out in the Loan Offer, interest was calculated on the Loan at a variable rate. The defendant agreed to repay the Loan, plus accrued interest to the plaintiff in monthly instalments.[17]
[17] Lemmens Affidavit 'RL-2', page 8.
By cl 16 of the General Terms and Conditions,[18] if the defendant failed to repay the Loan in accordance with the terms of the Loan Agreement, and such failure continued for 31 days after being served with a notice of the default, the plaintiff was entitled to require the defendant to repay all amounts owing under the Loan Agreement that would not otherwise have been immediately payable.
[18] Lemmens Affidavit 'RL-2', pages 45 - 46, cl 16 'Default - Accelerated Payment of Amounts'.
Under the terms of the Mortgage, the defendant promised to pay the plaintiff all money owed to it under the Loan Agreement, as set out in the Memorandum.[19]
[19] Lemmens Affidavit 'RL-2', pages 76 -77, cl B1 'Your Obligations, B1. What you Must Pay.'
Clause C2 of the Memorandum is to substantially the same effect as cl 16 of the General Terms and Conditions in relation to a failure by the defendant to pay amounts due to the plaintiff under the Mortgage.[20]
[20] Lemmens Affidavit 'RL-2', pages 79 - 80, cl C2 'Powers on default'.
In breach of the terms of the Loan Agreement and the Mortgage, the defendant failed to pay the plaintiff on time for amounts due and owing under the Loan Agreement and the Mortgage.[21] As at 24 June 2022, there were arrears of $124,234.05 owing under the Loan Agreement.[22]
[21] Lemmens Affidavit [11].
[22] Lemmens Affidavit [12].
On 24 June 2022, the plaintiff issued combined notices of default to the defendant pursuant to the Loan Agreement, the Mortgage, s 106 of the Transfer of Land Act 1893 (WA) and s 88 of Schedule 1 of the National Credit Code (Default Notice).[23]
[23] Lemmens Affidavit [13], 'RL-6'.
The Default Notice was sent to the defendant on 27 June 2022 by registered post to her residential address (the Property), as deposed to in the Da Silva Affidavit[24] and in accordance with cl 18 of the General Terms and Conditions.[25]
[24] Da Silva Affidavit [3] - [8], 'BDS-1', 'BDS-2', 'BDS-3'.
[25] Lemmens Affidavit 'RL-2', page 46, cl 18 'How Westpac gives Notices and Demands'.
The Default Notice stated that the defendant was in default of the terms of the Loan Agreement and the Mortgage for failing to pay the amount of $124,234.05 and required the defendant to remedy the default by paying that amount into her Loan account by 5 August 2022. The Default Notice stated that if the defendant did not remedy the default by 5 August 2022, the plaintiff would be entitled to commence enforcement proceedings claiming the full balance of the Loan then owing, being $734,085.31, and possession of the Property.[26]
[26] Da Silva Affidavit [7], 'BDS-1'.
The defendant failed to remedy the default within the time specified in the Default Notice.[27] Under cl 16 of the General Terms and Conditions and cl C2 of the Memorandum, the total amount owing under the Loan Agreement and Mortgage became immediately due and payable by the defendant to the plaintiff, and the defendant is entitled to possession of the Property.
[27] Lemmens Affidavit [14], 'RL-7'.
Mr Chard deposes in the Chard Affidavit that:
(a)no payments have been made by the defendant to the plaintiff since the commencement of this proceeding;
(b)the last payment made by the defendant towards the debt owed under the Loan Agreement was $3,134 on 28 October 2020; and
(c)as at 6 August 2024, the balance owing to the plaintiff by the defendant is $865,544.35, with interest accruing at a daily rate of $180.91.[28]
[28] Chard Affidavit [4] - [6], 'BEC-1'.
The Defence and the defendant's position
I note that the defendant is a litigant in person. Although a memorandum of appearance was filed on her behalf by TGC Lawyers in May 2023, it is not clear whether that firm has taken any active role in representing the defendant for some time. I would not expect a legal practitioner to file a document in the nature of the Defence.
The defendant has been formally self-represented since filing her notice of change of representation on 27 June 2024. As a litigant in person, the defendant is entitled to some leniency in relation to compliance with the court rules.[29] It is appropriate that I approach the documents in which she articulates her case with some flexibility.[30] However, at the same time, I must ensure that any latitude given to her does not deprive the plaintiff of its right to procedural fairness and a fair hearing.[31]
[29] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10].
[30] Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536 ‑ 537 (Kirby P), 543 (Hope & Samuels JJA agreeing); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J).
[31] Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51]; MTI v SUL [No 2] [2010] WASCA 58 [42] ‑ [43] (Newnes JA, with whom Pullin & Buss JJA agreed); Glew v Frank Jasper Pty Ltd [10].
Even allowing the defendant some latitude, she makes many assertions in the Defence which have no legal or evidentiary basis, are largely nonsensical and which have been described, in other decisions of this court, as 'psuedo-law'.[32]
[32] See for example Kelly v Fiander [2024] WASC 275 [26] ‑ [29] (Musikanth J); Kelly v Fiander [2023] WASC 187 [10] ‑ [13] (Vandongen J); Yap v Matic [No 7] [2023] WASC 55 [44] (Solomon J); Yap v Matic [No 4] [2022] WASC 422 [23] (Solomon J).
Theories such as those advanced in the Defence and variants of such theories have, as observed by Musikanth J in Kelly v Fiander [2024] WASC 275,[33] been repeatedly rejected by Australian courts, including this court, having been variously described as 'nonsense', 'nonsensical', 'fundamentally misguided' and 'gobbledygook'.
[33] Kelly v Fiander [2024] WASC 275 [29], and the authorities referred to.
The Defence contains broad allegations to the effect that, amongst other things, the plaintiff has engaged in fraud and has been deceptive, and that the remedy sought in the claim has placed the defendant at a disadvantage in the proceedings, has caused a miscarriage of justice and is an abuse of process. No facts are pleaded and no evidence has been adduced to support any of those contentions.
The Defence also makes statements to the effect that the 'Genuine Binding Financial Agreement signed in wet ink' has not been provided and discovery of all 'Genuine Original Instruments' is required to validate their existence.
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,[34] 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.
[34] Connell v Australia and New Zealand Banking Group Limited [2023] WASCA 48 [24].
Disposition
I will address the question of leave to bring the Application and whether leave should be granted after considering the merits of the Application.
I am satisfied that the plaintiff has complied with the procedural requirements for an application for summary judgment. Ms Lemmens deposes in the Lemmens Affidavit to the facts verifying the claim, as set out in these reasons. She also deposes to her 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 filed no evidence in opposition to the Application, despite having had a significant amount of time in which to do so. She has not discharged her evidentiary burden of establishing any defence to the claim, that there is an issue or question to be tried, or some other reason why the action should proceed to trial.
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 the plaintiff which, by operation of the Loan Agreement, is payable to the plaintiff. She defaulted on the Loan and the plaintiff is entitled to possession of the Property under the terms of the Loan Agreement and the Mortgage.
The matters referred to in the Defence 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.
Leave to bring the Application out of time
The Application was filed on 14 March 2024, a little over nine months after the defendant entered an appearance on 30 May 2023.
I accept that the plaintiff proceeded on the basis that it did not consider it necessary to seek leave to bring the Application out of time. This is because, as outlined in its written submissions, the plaintiff understood that leave had been granted for it to bring any application for summary judgment by 15 March 2024. The plaintiff relied on the order made on 12 December 2023 by a registrar of the court, set out in [12] and reproduced below, for ease of reference:
3.The plaintiff has leave, pursuant to Order 14, Rule 2 (sic) of the Rules of the Supreme Court 1971 (WA), to make an application for summary judgment (if any), which application must be filed and served by 15 March 2024.
The usual practice of the court is for applications for summary judgment to be determined by a judge or master as such do not fall within the jurisdiction of a registrar, as prescribed in O 60A RSC. It follows, in my view, that the grant of leave to bring an application for summary judgment later than 21 days after an appearance is filed, under O 14, r 1, is a matter to be determined by a judge or master. This was accepted by counsel appearing for the plaintiff.
Although the plaintiff has not adduced evidence in support of an application for leave and explaining the delay in bringing the Application, I am satisfied that, in the circumstances of this case, it is appropriate to extend the time for bringing the Application.
There was a delay in bringing the Application, but it is not an undue delay. I accept the submission made on behalf of the plaintiff to the effect that it may be inferred from the procedural history that a significant amount of the delay was to afford the defendant time and the opportunity to file a defence.
The Application was still brought at an early stage of the proceeding, within a relatively short time of the Defence being filed, and by the date the plaintiff understood it was required to make the Application under the orders made. There is no evidence of any prejudice to the defendant caused by the delay in bringing the Application.
Further, this is a clear example of a case in which the interests of justice require an extension of time, and it is appropriate to exercise the discretion in favour of the plaintiff. This is because to require strict compliance with the rules would work an injustice upon the plaintiff. The plaintiff's case is so strong that to allow the matter to proceed to trial would not be in the interests of justice.
Conclusion and orders
For these reasons, I was satisfied at the hearing on 13 August 2024 that the time for bringing the Application should be extended and that summary judgment should be entered for the plaintiff.
The plaintiff also sought an order for costs of the Application and of the proceeding on an indemnity basis, pursuant to cl B1(b) of the Memorandum.
I am satisfied that the plaintiff is entitled to an order for costs to be paid under that provision, which relevantly provides that the defendant promises to pay to the plaintiff all reasonable amounts which the plaintiff reasonably incurs in relation to enforcement of the Mortgage. Amongst the other things stated, this includes legal fees on a full indemnity basis and GST on any such amounts.
I made the following orders:
1.The plaintiff has leave to bring the Application pursuant to Order 14, rule 1 of the Rules of the Supreme Court 1971 (WA) (RSC), the time for which is extended to 14 March 2024.
2. Pursuant to Order 14, rule 3 RSC, judgment is entered for the plaintiff against the defendant.
3. By 10 September 2024, the defendant is to deliver up to the plaintiff vacant possession of all of that land known as 4571 West Swan Road, West Swan in the State of Western Australia, more particularly described as Lot 83 on Deposited Plan 404715 and being the whole of the land contained in Certificate of Title Volume 2872, Folio 293.
4. The defendant is to pay the plaintiff's costs of the Application and of the proceeding on an indemnity basis pursuant to clause B1(b) of the memorandum of common provisions incorporated into the mortgage between the plaintiff and defendant registered on 9 July 2015 (registration number N057728).
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AM
Associate to Master Russell
15 AUGUST 2024
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