Westpac Banking Corporation v Ninan
[2014] WASC 456
•5 DECEMBER 2014
WESTPAC BANKING CORPORATION -v- NINAN [2014] WASC 456
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 456 | |
| Case No: | CIV:2202/2014 | 17 NOVEMBER 2014 | |
| Coram: | CHANEY J | 5/12/14 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Summary judgment granted | ||
| B | |||
| PDF Version |
| Parties: | WESTPAC BANKING CORPORATION GEORGE NINAN MOLLY GEORGE |
Catchwords: | Practice and procedure Application for summary judgment Whether there is an arguable defence What is the test to be used for valuation of land Turns on own facts |
Legislation: | Contracts Review Act 1980 (NSW) National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (Cth) Rules of the Supreme Court 1971 (WA) Sale of Land Act 1970 (WA) Valuation of Land Act 1978 (WA) |
Case References: | Bunbury Foods Pty Ltd v National Bank of Australasia Ltd [1984] HCA 10; (1984) 153 CLR 491 Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109 Spencer v Commonwealth of Australia [1907] HCA 82; (1907)5 CLR 418 Walker Corp Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 233 CLR 259 Wallingford v Mutual Society (1880) 5 App Cas 685 Westwind Air Charter Pty Ltd v Hawker De Havilland Ltd (1990) 3 WAR 71, 84 - 85; Goh v First Industries Corp [2002] WASCA 341 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : WESTPAC BANKING CORPORATION -v- NINAN [2014] WASC 456 CORAM : CHANEY J HEARD : 17 NOVEMBER 2014 DELIVERED : 5 DECEMBER 2014 FILE NO/S : CIV 2202 of 2014 BETWEEN : WESTPAC BANKING CORPORATION
- Plaintiff
AND
GEORGE NINAN
First Defendant
MOLLY GEORGE
Second Defendant
Catchwords:
Practice and procedure - Application for summary judgment - Whether there is an arguable defence - What is the test to be used for valuation of land - Turns on own facts
Legislation:
Contracts Review Act 1980 (NSW)
National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (Cth)
Rules of the Supreme Court 1971 (WA)
Sale of Land Act 1970 (WA)
Valuation of Land Act 1978 (WA)
Result:
Summary judgment granted
Category: B
Representation:
Counsel:
Plaintiff : Mr J Lin
First Defendant : In person
Second Defendant : Not applicable
Solicitors:
Plaintiff : Jackson McDonald
First Defendant : In person
Second Defendant : In person
Cases referred to in judgment:
Bunbury Foods Pty Ltd v National Bank of Australasia Ltd [1984] HCA 10; (1984) 153 CLR 491
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109
Spencer v Commonwealth of Australia [1907] HCA 82; (1907)5 CLR 418
Walker Corp Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 233 CLR 259
Wallingford v Mutual Society (1880) 5 App Cas 685
Westwind Air Charter Pty Ltd v Hawker De Havilland Ltd (1990) 3 WAR 71, 84 - 85; Goh v First Industries Corp [2002] WASCA 341
1 CHANEY J: The plaintiff, Westpac Banking Corporation, seeks summary judgment pursuant to O 14 r 1 of the Rules of the Supreme Court 1971 (WA) on its claim for possession of a property owned by the defendants and for repayment of amounts said by the plaintiff to be owing under a loan agreement and mortgage. The application for summary judgment is opposed by the defendants.
2 The plaintiff's case is relatively straightforward and is supported by the affidavit of Dominic Cannalonga (sworn 1 October 2014), a litigation officer employed by the plaintiff.
3 It is not in issue that the defendants are the registered proprietors of a property situated at 104 Sanctuary Circuit, Dawesville, more particularly described as Lot 11 on Deposited Plan 33439 and being the whole of the land comprised in Certificate of Title Volume 3529 Folio 11 (the property).
4 By an agreement dated 7 June 2007, the plaintiff agreed to lend to the defendants $1,140,000 (2007 loan agreement).1 The 2007 loan agreement incorporated the terms and conditions set out in the Westpac 'Booklet of Standard Terms and Conditions' dated April 2007.2 Clause 16 of those standard terms and conditions provided that in the event that any default by the defendants under the loan agreement or under any security continued for at least seven days, then the plaintiff could give notice of that default to the defendants. If the default continued for at least 31 days after service of the notice, then the plaintiff could require that all amounts due under the loan contract become immediately payable.
5 To secure the loan, the defendants mortgaged the property to the plaintiff pursuant to a mortgage which was registered at Landgate on 9 August 2007 (the mortgage).3
6 Mr Cannalonga deposes that the defendants defaulted under the loan agreement so that, as at 23 June 2014, the defendants failed to pay amounts due under the 2007 loan agreement and the mortgage totalling $444,857.46. On 26 June 2014, a default notice was served on the defendants calling upon them to pay that sum.4 The defendants failed to pay the sum due, and on 4 August 2014, the plaintiff, through its solicitors, made a demand pursuant to the 2007 loan agreement and the mortgage for the total amount of the debt then said to be due, $1,604,015.90.5
7 The defendants did not comply with the demand.
8 On the basis of those facts, the plaintiff claims to be entitled to possession of the property and repayment of all amounts owing under the 2007 loan agreement and the mortgage. It is clear that those elements of the plaintiff's claim are supported by the affidavit of Mr Cannalonga, and subject to consideration of any defence which might be available to the defendants, the plaintiff is entitled to judgment. Once the requirements of O 14 r 1 are satisfied by the plaintiff so as to give it a prima facie right to judgment, the burden shifts to the defendants to satisfy the court why judgment should not be given against them.6
The defendants' defence
9 The defendants are husband and wife. They both signed an appearance which was entered on 15 September 2014 which specified that they would be represented by Mr Ninan. They reside in Thailand, and participated in both the initial directions hearing and the hearing of the application for summary judgment by Mr Ninan's attendance by telephone. They filed a substantial volume of material in opposition to the application for summary judgment. That material included three affidavits of Mr Ninan, a 19-page defence and counterclaim and written submissions in opposition. Those documents are replete of complaints of deception and fraudulent conduct on the part of the plaintiff, various valuers, a number of Federal Court judges, a senior member of the State Administrative Tribunal and myself. It is not easy to distil from the materials supplied precisely how the matters raised might provide a defence to the plaintiff's claim in these proceedings. Shortly before the hearing, Mr Ninan provided a further document which set out the submissions he proposed to make orally. His oral submissions closely followed that document. I will attempt to distil from the materials and submissions presented by Mr Ninan whether any arguable defence is apparent.
10 It is well-established that where a defendant puts forward affidavits designed to raise a defence in the context of a summary judgment application, it is necessary that the affidavits condescend to particulars. That requirement was noted by Brinsden J in Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd7 where his Honour referred to Lord Blackburn's observations in Wallingford v Mutual Society8 as follows:
I think that when the affidavits are brought forward to raise that defence they must, if I may use the expression, condescend upon particulars. It is not enough to swear, 'I say I owe the man nothing'. Doubtless if it was true, that you owed the man nothing, as you swear, that would be a good defence. But that is not enough. You must satisfy the judge that there is reasonable ground for saying so. So again, if you swear that there was fraud, that will not do. It is difficult to define it, but you must give such an extent of definite facts pointing to the fraud as to satisfy the judge that those are facts which make it reasonable that you should be allowed to raise that defence. And in like manner as to illegality and every other defence that might be mentioned.
11 Following completion of the oral hearing, in which I granted Mr Ninan a brief adjournment in order to gather his thoughts for his reply to the plaintiff's oral submissions, Mr Ninan has continued to send various submissions and correspondence to the Court. No leave to do so was sought or granted at the hearing or subsequently. I have had no regard to those post-hearing communications.
Overview of the defendants' defence
12 Much of Mr Ninan's submissions rested on the proposition that three loan agreements which the defendants had entered with the plaintiff, in 2002, 2006 and 2007 respectively, were 'part and parcel of' the present proceedings. In essence, he contends that each of the three loan agreements were part of a 'fraudulent scheme of land valuation' to which the plaintiff was said to be a party, and that, therefore, the plaintiff is not entitled to enforce either the 2007 loan agreement or the mortgage.
13 To understand that submission, it is necessary to say something about the earlier loan agreements. The defendants purchased the property, as vacant land, in 2002. Prior to the sale, the vendor, who was apparently the developer of the subdivision, had granted a mortgage to St George Bank Ltd over the property. The defendants paid $300,000 for the property. Upon settlement of the sale, the mortgage granted by the developer was discharged, and a fresh mortgage to St George Bank Ltd (which was subsequently merged into the plaintiff so that the plaintiff assumed all of its assets and liabilities) was granted by the defendants and registered against the title to the property.
14 In 2006, the defendants purchased a property at Lot 124 Lawrencia Loop, Kalbarri (Lot 124). They again financed that purchase by borrowing from St George Bank Ltd. Again, the vendor was a developer and St George Bank Ltd held a mortgage over Lot 124, which was discharged on settlement of the sale to the defendants, whereupon the defendants' mortgage to St George Bank Ltd was registered against Lot 124.
15 In 2007, the defendants applied for a further loan from the plaintiff, which by that time would appear to have assumed the business of St George Bank Ltd. In the application lodged in relation to that loan, the defendants estimated the value of the property at $1,750,000. The application did not specify the amount of the loan sought, but referred to a covering letter. The covering letter stated that 'our application for the maximum available loans' was attached. The application specified that the purpose of the loan was 'investment' and contained a declaration by the defendants that the credit to be provided was to be wholly or predominantly provided for business or investment purposes. By the time this application was made, the defendants had built a house on the property. It was pursuant to that application that the 2007 loan agreement was made and the mortgage to secure that loan was registered.
16 As I understand their position, the defendants contend that all three loan agreements were procured in a context where the banks, through, it would seem, collusion with valuers and land developers, lent money on mortgage in amounts far and in excess of the true value of the land. It is contended that the banks knew the true value of land, and that they 'fraudulently' utilised valuations by licensed valuers (also said to be fraudulent) as the basis for lending. Conduct by the banks and others, in relation to that scheme, as I understand the defendants' position, is said to give rise to an entitlement to have the 2007 loan agreement set aside and the mortgage discharged, apparently with no liability on the part of the defendants to account for the funds which were advanced to them.
17 Against that general context, Mr Ninan argued that the defence rested on 'eight pillars'. He contended that the plaintiff's claim for summary judgment must fail if any one of those pillars is established in the defendants' favour. I will address the 'eight pillars' below.
Applicable law - pillar 7
18 It is common ground that the 2007 loan agreement stipulated that if, as is the case, the borrowers' address in not in Australia, then the law of New South Wales was to apply to the 2007 loan agreement, although credit legislation of other states or territories might apply. In relation to the mortgage, the governing law and jurisdiction was stipulated to be the law of the state in which the property is located, although consumer credit legislation of other states might still apply. Thus, in this case, we have an unusual situation of the law of New South Wales applying in relation to the 2007 loan agreement and the law of Western Australia applying in relation to the mortgage. That position was accepted by all parties.
19 Pillar 7 was described as 'wrong pleading and wrong jurisdiction'. Mr Ninan's oral submissions made in relation to this pillar did not develop this point clearly. Essentially, the submission was that, having determined that the law of New South Wales was to apply, the plaintiff sought to obtain possession excluding those laws. It may be that this point is related to a section of the written submissions filed by Mr Ninan which suggest reliance on the Contracts Review Act 1980 (NSW).
20 Section 7 of the Contracts Review Act enables the Supreme Court of New South Wales (and assuming, for present purposes, the Supreme Court of Western Australia applying the law of New South Wales9) to, if it considers it just to do so, refuse to enforce, avoid, vary or terminate a contract where it finds the contract or a provision in a contract to be unjust.
21 Mr Ninan contends that the 2002 and 2006 loan agreements (to which I assume, for present purposes, the law of New South Wales applies) are an integral part of these proceedings, and that he is entitled to rely in his defence on circumstances surrounding them to invoke s 7 of the Contracts Review Act and that is open to do so, by reason of s 16(c) of the Contracts Review Act, and O 18 r 2 of the Rules of the Supreme Court (WA).
22 Section 16 of the Contracts Review Act deals with the time for making applications for relief. Section 16(c) permits applications in relation to a contract to be made within two years of the contract or during:
(c) the period of the pendency of maintainable proceedings arising out of or in relation to the contract, being proceedings (including cross-claims, whether in the nature of set-off, cross-action or otherwise) that are pending against the party seeking relief under this Act.
23 Section 16(c) would not provide a basis for any application in 2014 for relief under s 7 in relation to the 2002 or 2006 loan agreements. That is because the current proceedings relate to the 2007 loan agreement, that being 'the contract' in relation to which proceedings, are pending. Claims under s 7 in relation to the 2002 and 2006 loan agreements (which, for present purposes, I assume to be governed by the law of New South Wales) are out of time and cannot be brought in these proceedings. Section 16(e) may however enable an application for relief in relation to the 2007 contract, to be made within the period specified. I will deal below with whether the evidence establishes that such a claim is arguable.
24 The plaintiff has not sought in those proceedings to exclude the New South Wales legislation. This Court has jurisdiction to grant the order for possession pursuant to the terms of the mortgage, the applicable law in relation to which is the law of Western Australia, and to give judgment for the amount due under the 2007 loan agreement.
25 Order 18 r 2 of the Rules of the Supreme Court permits the bringing of a counterclaim. Whilst it can be accepted that it is open for the defendants to bring a counterclaim in relation to the 2002 and 2006 loan agreements in these proceedings, it would not extend time for a claim under the New South Wales legislation. Furthermore, the existence of some sort of a claim in relation to the 2002 and 2006 loan agreement would not preclude the grant of summary relief for possession based on the 2007 loan agreement and the mortgage.
26 The substance of Mr Ninan's contention appears to relate to the actions of parties other than the plaintiff, although he attributes responsibility for others' wrongdoing to the plaintiff. Even if it can be said that some potential claim against the plaintiff is to be found in the materials submitted, it could only amount to a claim for unliquidated damages. Claims of that nature cannot be set off against the plaintiff's claim. Rather, if sustainable, they are simply counterclaims which do not impeach the plaintiff's claim.10
27 Pillar 8 of the defence is not made out.
Deceptive valuation and mortgaging - Pillar 1
28 There are a number of reasons why I do not consider that the matters raised by Mr Ninan within Pillar 1 amount to an arguable defence of the plaintiff's claim.
29 First, there is no cogent evidence of fraudulent valuations. Fraud is, of course, a serious allegation to make, and should not be made without an adequate basis. The affidavits and other documents submitted by Mr Ninan are replete with complaints of deceit and fraud. There is no cogent evidence that the various valuations referred to were not bona fide statements of the opinions of the valuers concerned. Mr Ninan relied on variations in valuations given from time to time, and on discrepancies between valuations by the Valuer-General and valuations obtained by the banks for lending purposes. Valuations are simply matters of expert opinion based on well-recognised tests. Values change over time, and honestly held opinions as to value may vary between different valuers at the same time and by the same valuer at different times. The classic test of value is the amount which a willing purchaser will pay and a not unwilling vendor will accept for a property, with both parties having attributed to them knowledge of all currently available information that affects value.11
30 Mr Ninan asserts that values were fraudulently inflated by reference, it would appear, to a proposition that the value of the land which he purchased is to be ascertained by applying the proportion which his land bore of the total broadacre area of subdivision (or possibly the number of lots produced) to the price which the developer paid for the land prior to its subdivision. Whilst the precise mathematics applied by Mr Ninan are not readily apparent, the proposition upon which he relies is simply untenable. It ignores the cost of subdivision, changes in market, changes in value over time, questions of the zoning and other factors that might affect the value. Significantly, Mr Ninan does not suggest that he is the only person who paid an inflated price, but in relation to the Kalbarri subdivision asserts that 150 lots of single residential land were sold at these inflated prices, and in relation to the Dawesville subdivision asserts that lots were sold at inflated prices over six stages from 2002 through to 2006. If the valuations made of Mr Ninan's land reflected prices commonly paid by other purchasers in the same subdivision, that is a strong indication that the valuations were made in accordance with normal valuation principles. Mr Ninan's proposition appears to be that all of those lots sold to others should have been sold only at the value per hectare which the developer paid for the broadacre lot. It is obvious that, to the extent that Mr Ninan relies on that fundamental proposition to establish that the various valuations were fraudulent, his position is untenable.
31 The second problem with Mr Ninan's contentions are that he seeks to rely upon what is said to be deceitful or fraudulent actions by developers and valuers, and it would seem even by the Valuer-General, and to attribute liability for those actions to the plaintiff or its predecessor, St George Bank Ltd. That attribution of liability appears to be based on two propositions. The first is that the plaintiff or its predecessor, because it was a mortgagee to the developers, must have known the true value of the land. Putting aside that what Mr Ninan says is the true value of the land cannot be accepted, it is not the case that knowledge of the value of land can simply be attributed to a mortgagee because it holds a mortgage. Secondly, there is no basis to fix liability on the plaintiff for various alleged misrepresentations by developers. Beyond bare assertions, Mr Ninan produced no evidence which would suggest that the plaintiff or its predecessor participated in the development or marketing of the various subdivisions beyond simply providing finance.
32 Mr Ninan places reliance on s 24 of the Valuation of Land Act 1978 (WA). Section 24 of the Valuation of Land Act provides:
24. Valuation may be aggregate of or a portion of valuations; valuing improvements
(1) Subject to sections 62 and 63 of the Strata Titles Act 1985, the Valuer-General may, in his discretion, assign to any land to be valued a valuation obtained -
(a) by aggregating the valuations he would have assigned to any parts of which the land is comprised had he been separately valuing each such part; or
(b) by apportioning to the land such part as he considers appropriate of the valuation he would have assigned had he been valuing that land conjointly with any other land,
but nothing in this subsection limits the means by which the Valuer-General may otherwise make a valuation of the land.
(2) Any improvements on any land that are, in the opinion of the Valuer-General, not capable of occupation shall not be included for the purposes of determining the gross rental value of the land.
(3) Subject to subsection (2), the gross rental value of any land shall include the value of such of the items set out below as are fixed to the land, namely -
(a) lifts, escalators or hoists of any description; and
(b) air conditioning, cooling, heating or circulating equipment; and
(c) water heating, cooling or pumping equipment; and
(d) sewerage or drainage pumps; and
(e) vehicle turntables; and
(f) door control and surveillance equipment of any nature,
including the control equipment used therewith and whether provided by the landlord or not.
Giving false document to sustain a crime - Pillar 2
34 This contention is that the Financial Ombudsman Service made a 'false premature recommendation on 9 February 2012' on the basis that the plaintiff submitted to it two false valuations. The contention has no merit because the determination has no effect on the defendants' liability in these proceedings and, in any event, for the reasons explained above, there is no credible evidence to support the contention that any valuations were false.
Concealment of relevant data - Pillar 3
35 This contention is based on the defendants' reliance on s 7 of the Sale of Land Act 1970 (WA). It is misconceived. The defendants contracted to purchase the property on 12 July 2002. Settlement was to be within 14 days of issue of title. The title was issued to the developer on 26 November 2002. Annexure GN 124 to Mr Ninan's affidavit of 24 October 2004 shows that the title was subject to two mortgages to St George Bank Ltd, which were both registered on 10 October 2002. Mr Ninan complains that the existence of those mortgages was not disclosed to him, which he contends violated s 7 of the Sale of Land Act and was 'a common law violation to use my land to finance the cheating of selling the land at false value to me'. There is no substance in either contention. Section 7 of the Sale of Land Act deals with terms contracts. The defendants' contract to purchase the property was not a terms contract as defined by the Sale of Land Act. What is apparent from the documents submitted by the defendants is that, at the time the certificate of title was issued for the subdivided lot, the land concerned was already the subject of two mortgages granted by the developer. Mr Ninan submits, no doubt correctly, that those mortgages were discharged on the day of settlement of the defendants' purchase of the land. There was nothing unusual or untoward in those events, and there was no obligation on the vendor under the Sale of Land Act or otherwise to disclose the mortgage on the title. The vendor's obligation was to discharge any existing mortgage upon settlement in order to provide a clear title. It fulfilled that obligation.
Legal fees added to the loan account - Pillar 4
36 The amount claimed by the plaintiff in the notice of default included legal costs. Mr Ninan contends that those costs were not properly recoverable under the loan agreement and mortgage. In response to that contention, the plaintiff filed an affidavit of Stefan Spyridon Koulocheris (sworn 17 November 2014), a bank officer employed by the plaintiff, which deposed to the recalculation of the balance of the account if the legal expenses were removed and not taken into account. On that basis, the balance as of 4 August 2014 was $1,517,217.29, and as the date of the hearing was $1,548,698.61 with interest accruing at the daily rate of $218.4259 compounded daily. Counsel for the plaintiff indicated that the plaintiff was willing to remove the debits relating to legal expenses from the loan account for the purposes of the summary judgment application, and only to seek judgment in relation to the balance as recalculated by Mr Koulocheris. As the plaintiff correctly submitted, it is not essential to the validity of the demand that it correctly states the amount of the debt, even where demand is made for more than is due.12 While not conceding that the legal costs were not properly recoverable, the plaintiff abandoned that part of its claim instead of embarking on argument to justify that part of the claim. Even if Mr Ninan's contention is correct, it would only provide a defence to that part of the claim which is comprised of legal fees. It would not prevent judgment being entered for the balance excluding legal fees, nor would it be a defence to the application for possession of the property. In those circumstances, it is not necessary to deal further with this aspect of the defendants' contentions.
Australian Consumer Law and Consumer Credit Code - Pillar 5
37 The defendants contend that they have a defence to the claim by reason of the protections available under the Australian Consumer Law. There are a number of reasons why the Australian Consumer Law does not apply to the 2007 loan agreement and mortgage. The first is that, by virtue of s 3 of the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (Cth), the Australian Consumer Law does not apply in relation to a contract or other instrument made before 1 July 2010. The Australian Consumer Law does apply in relation to what is defined as a 'carried over instrument'. A carried over instrument is a contract which was made before 1 July 2010, or was in force before that date, and to which the old credit code of a referring State applied. The 2007 loan agreement and the mortgage are not carried over instruments. That is because the Consumer Credit (Western Australia) Code only applies to credit contracts entered into where the debtor is ordinarily resident in Western Australia.13 The Consumer Credit (New South Wales) Code similarly is only applicable to credit contracts entered into by debtors who are ordinarily resident in New South Wales.14 It is not in issue that the defendants were not, at the time of entering into the 2007 loan agreement and the mortgage, or indeed at any other time, ordinarily resident in Western Australia or New South Wales.
38 Furthermore, the credit codes only apply where the credit is provided wholly or predominantly for personal, domestic or household purposes.15 In the loan application, the defendants specified the purpose of the loan as 'investment purposes' and made a declaration in the loan application that the credit was to be provided wholly or predominantly for business or investment purposes. Section 11 of each of the state consumer credit codes provides that credit is presumed conclusively for the purposes of the code not to be provided wholly or predominantly for personal, domestic or household purposes if the debtor declares before entering into the credit contract that the credit is to be applied wholly or predominantly for business or investment purposes. That presumption is applicable to the 2007 loan agreement.
39 Mr Ninan contends that the plaintiff knew that the purpose of the loan taken out originally in 2002 was for the defendants' future home. No particulars as to the basis of that knowledge are provided. Mr Ninan submits that, in total, the defendants purchased four properties in Western Australia. The only reasonable inference is that those properties, or at least some of them, were purchased as investments. Furthermore, the 2007 loan agreement was not for the purpose of purchasing the property, but rather for re-utilising it as security for borrowings for some other purpose, at least to the extent of the additional funds borrowed beyond those necessary to pay out the existing mortgage. There is no basis upon which the presumption flowing from the declaration as to use of the funds can be displaced. In the circumstances, it is not open to the defendants to rely on the provisions of the Australian Consumer Law, or the preceding state consumer credit codes by way of defence.
Plaintiff's failure to respond to claims - Pillar 6
40 Mr Ninan contends that because the plaintiff failed to produce evidence to contradict, or deal with the defendants' submissions and various allegations which he made in his affidavit in response, those matters should be left to trial. He notes that the bulk of relevant matters are 'left unchallenged by a mere statement that they are not relevant'. The matters to which he refers are:
i) There was serious false mortgaging in Loan Agreement in 2002.
ii) There was serious false mortgaging in Loan Agreement in 2006.
iii) Lot 124 Lawrencia (my Kalbarri home) was illegally sold to erase proof of false mortgaging and to erase fraud of Eco Flora Estate.
iv) False documents (false valuations) were given by the plaintiffs.
v) Plaintiffs know the "true value" of the mortgaged land.
vi) Interim valuations (birth certificates) and therefore list prices of "off plan" sales need to conform to the s 23/s 24 provisions of VLA 1978.
41 For the reasons discussed earlier, none of those matters, or the evidence said to support them, provides a defence to the plaintiff's claim. The plaintiff was correct to ignore them as irrelevant or unsustainable.
The fraudulent sale of Lot 124 Lawrencia Loop - Pillar 8
42 Whatever claims the defendants may have in relation to Lot 124, they do not, for the reasons discussed above, provide a defence to the plaintiffs' claim in this action. Pillar 8 is no answer to the application for summary judgment.
43 Mr Ninan made a number of other submissions concerning alleged deceit and fraud by judges, and correspondence and communications with chief executive officers of shires, Landgate, the Commissioner of Consumer Protection, the WA Ombudsman and the Financial Ombudsman Service. None of those matters suggest a possible defence to the plaintiff's claims.
44 In the circumstances, I am not satisfied that the defendants have raised any arguable defence, and the plaintiff is entitled to the judgment it seeks.
1 Affidavit of Dominic Cannalonga, 1 October 2014, Attachment B.
2 Affidavit of Dominic Cannalonga, 1 October 2014, Attachment C.
3 Affidavit of Dominic Cannalonga, 1 October 2014, Attachment D.
4 Affidavit of Dominic Cannalonga, 1 October 2014, Attachment F.
5 Affidavit of Dominic Cannalonga, 1 October 2014, Attachment G.
6Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109, 110 (Brinsden J).
7Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109, 113.
8Wallingford v Mutual Society (1880) 5 App Cas 685, 704.
9Hepburn v McLaughlins Nominee Mortgage Pty Ltd (Unreported, Supreme Court of Queensland Court of Appeal, No 4239 of 1996, BC9700797, 18 March 1997) 2 (Davies JA; Thomas J), 15 (Fryberg J).
10Westwind Air Charter Pty Ltd v Hawker De Havilland Ltd (1990) 3 WAR 71, 84 - 85 (Murray J); Goh v First Industries Corp [2002] WASCA 341 [16] (Wheeler J; Templeman J & Rolfe JA agreeing).
11Spencer v Commonwealth of Australia [1907] HCA 82; (1907) 5 CLR 418, 432; Walker Corp Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 233 CLR 259 [51] (McHugh J).
12Bunbury Foods Pty Ltd v National Bank of Australasia Ltd [1984] HCA 10; (1984) 153 CLR 491, 503 - 504 (the Court).
13Consumer Credit (Western Australia) Code s 6(1)(a).
14Consumer Credit (New South Wales) Code s 6(1)(a).
15Consumer Credit (Western Australia) Code s 6(1)(b); Consumer Credit (New South Wales) Code s 6(1)(b).
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