Westpac Banking Corporation v Johns
[2025] WASC 185
•8 MAY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: WESTPAC BANKING CORPORATION -v- JOHNS [2025] WASC 185
CORAM: FORRESTER J
HEARD: 8 MAY 2025
DELIVERED : 8 MAY 2025
FILE NO/S: CIV 1115 of 2023
BETWEEN: WESTPAC BANKING CORPORATION
Plaintiff
AND
KATHLEEN SARAH LOUISA JOHNS
Defendant
Catchwords:
Application for summary judgment - Order 14 Rules of the Supreme Court 1971 (WA) - Mortgage action - Plaintiff's application for possession of property - Turns on own facts
Legislation:
National Credit Code
Transfer of Land Act 1893 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Extension of time granted
Application for summary judgment granted
Summary judgment entered for the plaintiff pursuant to O 14
Order for defendant to deliver up vacant possession of property
Category: B
Representation:
Counsel:
| Plaintiff | : | C M Guy |
| Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | TG Legal & Technology Lawyers |
| Defendant | : | In Person |
Cases referred to in decision:
Kounis v Westpac Banking Corporation [2023] WASCA 185
Lashansky v Legal Practice Board of Western Australia [No 3] [2013] WASCA 260
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
FORRESTER J:
(This judgment was delivered extemporaneously on 8 May 2025 and has been edited from the transcript to correct matters of grammar and infelicities of language, and to insert headings and references.)
Introduction
On 7 February 2023, the plaintiff commenced proceedings seeking orders that the defendant deliver up to the plaintiff vacant possession of a property over which the defendant had granted the plaintiff a mortgage as security for a loan from the plaintiff to the defendant.
The defendant is alleged to have defaulted on the loan and the plaintiff seeks to enforce the loan agreement and mortgage.
The plaintiff has now applied for summary judgment in the proceedings.
For the reasons which follow, the application should be granted.
Evidence relied upon
The plaintiff read the following affidavits in support of the application:
(a)Peter Scalzi affirmed 6 November 2024;
(b)Cassandra Michelle Guy sworn 9 December 2024;
(c)Olivia Daly Tallon affirmed 9 December 2024; and
(d)Cassandra Michelle Guy sworn 8 May 2025.
The defendant has not lodged any evidence in relation to the application.
Factual background
The following facts are deposed to in the affidavits relied upon by the plaintiff.
The defendant is the registered proprietor of the property known as 27 Great Eastern Highway, Bellevue, more particularly described as Lot 418 on Plan 2505 and being the whole of the land comprised in Certificate of Title Volume 1436 Folio 435 (Property).[1]
[1] Scalzi Affidavit, 6 (Annexure A).
On or about 1 March 2016, the plaintiff entered into two written loan agreements (Loan Agreements) with Clinton Ross Thomson and the defendant (Borrowers).
Loan Agreements
The Loan Agreements were comprised of the plaintiff's Consumer Credit Contract Schedules and the plaintiff's Terms and Conditions set out in the You and Your Loan booklet November 2014.[2]
[2] Scalzi Affidavit, 23 ‑ 66.
Pursuant to the terms of the Loan Agreements:
(a)the Borrowers jointly borrowed:
(i)$304,000 (First Loan Amount);[3] and
[3] Scalzi Affidavit, 9 ‑ 15.
(ii)$443,635 (Second Loan Amount)[4]
[4] Scalzi Affidavit, 16 ‑ 22.
(together, the Loan Amounts);
(b)interest was to be calculated at different rates for each of the Loan Amounts;
(c)the Borrowers agreed to repay the Loan Amounts plus accrued interest to the plaintiff by 360 monthly instalments;
(d)the Borrowers were individually liable for the full amount of the loans;
(e)the Borrowers gave security for the Loan Amounts by way of a mortgage over the Property, registered on the Certificate of Title for the Property on 23 March 2016;
(f)the Borrowers would be in default of the Loan Agreements if they failed to repay any of the Loan Amounts in accordance with the terms of the Loan Agreements;
(g)in the event of default, the plaintiff was entitled to issue a notice to the Borrowers (Notice) requiring the default to be rectified by the time stated in the Notice, being not less than 31 days;
(h)if the Borrowers failed to comply with the Notice by the time stated therein, then the whole of the amount owing under the Loan Agreements would become immediately due and payable; and
(i)on or about 23 March 2016, the plaintiff advanced the Loan Amounts to the Borrowers.
Mortgage
The Mortgage incorporated the terms contained in the Memorandum of Provisions L380817 (Memorandum of Provisions).[5]
[5] Scalzi Affidavit, 67 ‑ 79.
Pursuant to the Mortgage:
(a)the defendant would be in default of the mortgage if she failed to repay any of the Loan Amounts in accordance with the terms of the Loan Agreements;
(b)if the defendant was in default, the plaintiff would issue a Notice to the defendant requiring the default to be rectified by the time stated in the Notice; and
(c)if the defendant failed to comply with the Notice by the time stated therein, then the whole of the amount owing under the Loan Agreements and the Mortgage would become immediately due and payable and the plaintiff would be entitled to possession of the Property.
Default
As at 25 February 2022, the Borrowers had failed to pay to the plaintiff the sum of $65,197.31 in relation to the Second Loan Amount.
As at 1 August 2022, the Borrowers had failed to pay to the plaintiff the sum of $10,052.09 in relation to the First Loan Amount.
By written notices dated 2 March 2022[6] and 4 August 2022[7] (Notices) the plaintiff gave notice to the Borrowers that they were in default of the Loan Agreements and the Mortgage, specified the nature of the default and required the rectification of the default by a specified date, failing which the whole amount owing under the relevant Loan Agreement would become immediately due and payable, and that the plaintiff would commence enforcement proceedings.
[6] Tallon Affidavit, 3 ‑ 5.
[7] Tallon Affidavit, 6 ‑ 8.
Each of the default notices were sent by registered post to the defendant.
The Notice dated 2 March 2022 in respect of the Second Loan Amount was sent to the defendant's 'last known residential address' in Beechboro. It provided that the defendant was required to rectify the default by 9 April 2022.[8]
[8] Tallon Affidavit, 3.
The Notice dated 4 August 2022, in respect of the First Loan Amount, was sent to the address of the Property, being the address of the defendant as shown on the Certificate of Title. It required the defendant rectify the default by 12 September 2022.[9]
[9] Tallon Affidavit, 6.
The defendant failed to rectify the default in either case by the date specified.[10]
[10] Scalzi Affidavit [13].
Proceedings
The plaintiff commenced these proceedings on 7 February 2023 but was unable to serve the defendant until 12 September 2024.[11] The defendant lodged a memorandum of appearance on 2 October 2024.
[11] The validity of the Writ was extended to 14 February 2025 on 14 February 2024.
The application for summary judgment was filed on 9 December 2024. Pursuant to O 14 r 1(1) of the Rules of the Supreme Court 1971 (WA) (Rules), an application for summary judgment must be made by a plaintiff within 21 days after the defendant has entered an appearance, or at any later time by leave of the court.
Ms Guy deposed that on 23 October 2024 (the date by which any application for summary judgment was required to be filed) she caused a letter to be sent to the defendant advising that the plaintiff had given instructions for the application to be filed, and requesting the defendant contact the plaintiff's legal representatives to advise of the nature of any opposition to the application.
The following day, Ms Guy emailed the defendant a Minute of Proposed Orders for a Status Conference listed on 25 October 2024, and telephoned the defendant and left a voicemail for her.
On 25 October 2024, Ms Guy spoke to the defendant prior to the Status Conference. The defendant advised Ms Guy she wished time to seek legal advice and to file a defence. Orders were subsequently made at the Status Conference requiring the defendant to file any defence by 22 November 2024, and for the plaintiff to file any application for summary judgment by 6 December 2024.
The defendant has not filed a defence in this matter.
Application
The application has been brought pursuant to O 14 r 1(1) of the Rules.
I am satisfied that all of the documents have been served.
The preconditions for the making of an application have been met, except that the plaintiff has not brought the application within time and requires an extension.
An affidavit has been filed in support of the application, which complies with O 14 r 2(1).
Legal principles
Summary judgment
The legal principles relevant to an application for summary judgment pursuant to O 14 r 1 are well established. As the Court of Appeal observed in Kounis v Westpac Banking Corporation:
Summary judgment is a procedure designed to deal with cases that are not fit for trial. The power to determine a proceeding summarily must be attended with great care - sometimes expressed in terms of 'exceptional caution'. It is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if they went to trial, that summary judgment ought properly to be granted. The claimant carries the burden of persuading the court that the claim is a good one, that there is no defence to it, that leave to defend should not be granted and that judgment should be given for the claimant. If the claimant can establish a prima facie right to summary judgment, the burden then shifts to the defendant to satisfy the court why judgment should not be given against him or her. In this respect the defendant has an evidentiary burden. However, the overall burden of persuasion remains on the party moving for summary judgment.
A defendant seeking to resist summary judgment does not have to show a defence on the balance of probabilities. However, the defendant must at least show cause as to why there is an arguable defence.[12]
Extension of time
[12] Kounis v Westpac Banking Corporation [2023] WASCA 185 [8] ‑ [9]. See also Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24].
The rationale for the time limit is to ensure that applications for summary judgment are made at an early stage of the proceedings, before unnecessary expense has been incurred.
In Lashansky v Legal Practice Board of Western Australia, Newnes JA (with whom Pullin and Murphy JJA agreed) made the following observations in relation to an application by a defendant for an extension of time in which to apply for summary judgment:
It is clearly desirable that any application for summary judgment be made promptly so as to avoid unnecessary expense being incurred. However, the requirements for leave to make an application for summary judgment out of time will not ordinarily be demanding if on its face the application has some merit. It is not easy to imagine a situation in which a case which is apparently devoid of merit should be allowed to proceed to trial simply because the defendant did not bring the application for summary judgment within the 21 days specified ... in O 16 r 1(1). Questions of costs, of course, may arise where an application is made very late, but that is another matter.[13]
[13] Lashansky v Legal Practice Board of Western Australia [No 3] [2013] WASCA 260 [48].
Disposition
Merits of the application
I am satisfied, on the evidence before me, that the defendant entered into two Loan Agreements with the plaintiff on 1 March 2016, as well as a mortgage for the benefit of the plaintiff as part security for the loans made under the Loan Agreements.
I am satisfied that the defendant has defaulted on both of those Loan Agreements.
Pursuant to s 88 of the National Credit Code, enforcement proceedings in relation to a credit contract or mortgage cannot be commenced unless there is a default and the debtor or mortgagor (as the case may be) has been given a default notice allowing a period of at least 30 days from the date of the notice to remedy the default and the default has not been remedied.
Section 88(3) of the Code sets out the requirements of a default notice, and in this case, I am satisfied that the Notices complied with those requirements.
In respect of service of the Notices of Default, s 106(2) of the Transfer of Land Act 1893 (WA) (TLA) prescribes a number of methods of service, including:
(a)personal service; or
(b)sending by registered post to:
(i)the address entered in the Register as the address of the mortgagor; or
(ii)the address known to the mortgagee as the current address of the mortgagor.
The Loan Agreements and the Mortgage also provide that a notice can be served personally or by sending it by mail to the last address known to the Lender.
The evidence establishes that the Notices of Default were served in accordance with the TLA, the Loan Agreement and the Mortgage.
I am satisfied that the defendant failed to rectify the defaults within the time specified in the Notices.
Pursuant to the Notices, if the defendant failed to rectify the default, the amount outstanding and the plaintiff's costs and charges would automatically be due and payable, and the plaintiff was then entitled to commence enforcement proceedings claiming the outstanding amount and/or possession of the Property.
Pursuant to the terms of the Loan Agreement and the Mortgage, the plaintiff is therefore prima facie entitled to require the defendant to pay all amounts under the Loan Agreement that would not otherwise have been immediately payable, and to take possession of the Property.
The defendant has failed to adduce any evidence in opposition to the application, and there is no evidence which is capable of persuading me that there is an arguable defence to the plaintiff's claim. There is no other apparent basis which justifies a refusal to grant summary judgment.
Extension of time
The plaintiff has adequately explained the delay in making the application, at least until 6 December 2024, on the basis that it was trying to communicate with the defendant regarding the proposed application, and it had obtained orders permitting it to delay until that time.
Notwithstanding the fact that the plaintiff did not comply with the order to file by 6 December 2024, the application was filed on the following business day.
The plaintiff's case is a very strong one. There is no apparent defence. Further, there is no prejudice to the defendant by reason of the delay.
In those circumstances, it would run counter to the purpose of the summary judgment procedure to refuse the extension of time, and the extension of time will therefore be granted.
Conclusion
The application for summary judgment is granted.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
BF
Associate to the Hon Justice Forrester
20 MAY 2025
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