Westpac Banking Corporation v Puglia
[2024] WASC 142
•24 APRIL 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: WESTPAC BANKING CORPORATION -v- PUGLIA [2024] WASC 142
CORAM: MASTER RUSSELL
HEARD: 28 MARCH & 24 APRIL 2024
DELIVERED : 24 APRIL 2024
FILE NO/S: CIV 1682 of 2022
BETWEEN: WESTPAC BANKING CORPORATION (ACN 007 457 141)
Plaintiff
AND
BASIL JOHN PUGLIA
First Defendant
CONCETTA PUGLIA
Second Defendant
Catchwords:
Practice and procedure - Summary judgment - Mortgage action - Application for possession of property - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 14 r 1, O 14 r 2(1), O 14 r 3
Result:
Application granted
Summary judgment entered for the plaintiff
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr T J Langdon (28 March 2024); Ms C M Guy (24 April 2024) |
| First Defendant | : | In Person (on 28 March 2024); No Appearance (24 April 2024) |
| Second Defendant | : | In Person (on 28 March 2024); No Appearance (24 April 2024) |
Solicitors:
| Plaintiff | : | Thomson Geer Lawyers |
| First Defendant | : | In Person |
| Second Defendant | : | In Person |
Case(s) referred to in decision(s):
Connell v Australia and New Zealand Banking Group Limited [2023] WASCA 48
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Kelly v Fiander [2023] WASC 187
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
MTI v SUL [No 2] [2010] WASCA 58
Smart v Prisoner Review Board (WA) [2012] WASC 48
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
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 first and second defendants, Basil John Puglia and Concetta Puglia, are the registered proprietors of the property known as 29 Randell Crescent, Ocean Reef WA 6027, which is more particularly described as Lot 621 on Plan 17224 and being the whole of the land comprised in Certificate of Title Volume 1862 Folio 858 (Property).
The plaintiff, Westpac Banking Corporation, commenced this proceeding against the first and second defendants in July 2022 seeking orders for possession of the Property pursuant to the terms of a loan agreement and mortgage.
By chamber summons filed on 17 October 2023, the plaintiff applies for summary judgment against the first and second defendants pursuant to O 14 r 3 of the Rules of the Supreme Court 1971 (WA) (RSC) (Application).
The Application was brought some 10 weeks (74 days) after the defendants filed their respective memoranda of appearance on 4 August 2023.
The plaintiff requires, and seeks, leave to bring the Application, as it was not made within 21 days after the defendants entered their appearance as required under RSC O 14 r 1.
Self-represented litigants
I note that the first and second defendants are litigants in person. They are self-represented. As such, they are entitled to some leniency in relation to compliance with the court rules.[1] It is appropriate that I approach the documents in which they articulate their case with some flexibility.[2] However, at the same time, I must ensure that any latitude given to them does not deprive the plaintiff of its right to procedural fairness and a fair hearing.[3]
[1] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10].
[2] 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).
[3] 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 [2010] WASCA 87 [10].
Procedural history
The proceeding was commenced by writ of summons on 1 July 2022.
It is evident from the court file that the plaintiff had difficulties effecting personal service of the writ on the first and second defendants. On 27 June 2023, an order was made extending the validity of the writ for six months.
On the same date, the plaintiff filed an ex parte motion for orders for substituted service pursuant to RSC O 72 r 4. On 19 July 2023, orders were made granting the plaintiff leave to bring that application and for substituted service of the writ of summons indorsed with a statement of claim.
The first and second defendant entered an appearance on 4 August 2023.
On 4 September 2023, the first and second defendants filed a defence. An amended defence was filed on 15 February 2024.
The Court's jurisdiction to hear and determine the Application
The first and second defendants have made submissions in writing and orally in relation to the application for summary judgment and generally in the proceedings seeking to challenge the jurisdiction of this court. Yet they have both entered unconditional appearances and have participated in the proceeding. They have filed a defence and an amended defence, submissions, affidavits and other documents, though not all in the usual or conventional form. They have also sought to invoke the court's jurisdiction by issuing subpoenas. Those subpoenas were set aside by orders made on 22 March 2024 following the hearing of an application to set them aside.
Part way into the hearing of the Application on 28 March 2024, the second defendant, who spoke on behalf of herself and the first defendant, presented documents she described as having been filed in the High Court and which it was submitted prevented me from proceeding to hear the Application.
I marked those documents for identification as MFI‑A. They are documents titled:
(a)Form 17 Application for Removal, in the High Court of Australia, Perth Registry between Basil John Puglia and Concetta Puglia as applicants and Westpac Banking Corporation (ACN 007 457 141) as respondent;
(b)Affidavit of Concetta Puglia and exhibits to that affidavit sworn on 27 March 2024 stated to be in the High Court of Australia, Perth Registry between Basil John Puglia and Concetta Puglia as applicants and Westpac Banking Corporation (ACN 007 457 141) as respondent; and
(c)Affidavit of Basil John Puglia and exhibits to that affidavit sworn on 27 March 2024 stated to be in the High Court of Australia, Perth Registry between Basil John Puglia and Concetta Puglia as applicants and Westpac Banking Corporation (ACN 007 457 141) as respondent.
Upon receiving those documents, I adjourned the hearing of the Application for a short period of time to consider them. No file or action number has been endorsed on any of the documents and none of them bear the seal of the High Court. They purport to relate to an application made under s 40 of the Judiciary Act 1903 (Cth), which provides:
40Removal by order of the High Court
(1)Any cause or part of a cause arising under the Constitution or involving its interpretation that is at any time pending in a federal court other than the High Court or in a court of a State or Territory may, at any stage of the proceedings before final judgment, be removed into the High Court under an order of the High Court, which may, upon application of a party for sufficient cause shown, be made on such terms as the Court thinks fit, and shall be made as of course upon application by or on behalf of the Attorney‑General of the Commonwealth, the Attorney‑General of a State, the Attorney‑General of the Australian Capital Territory or the Attorney‑General of the Northern Territory.
(2)Where:
(a)a cause is at any time pending in a federal court other than the High Court or in a court of a Territory; or
(b)there is at any time pending in a court of a State a cause involving the exercise of federal jurisdiction by that court;
the High Court may, upon application of a party or upon application by or on behalf of the Attorney‑General of the Commonwealth, at any stage of the proceedings before final judgment, order that the cause or a part of the cause be removed into the High Court on such terms as the Court thinks fit.
(3)Subject to the Constitution, jurisdiction to hear and determine a cause or part of a cause removed into the High Court by an order under subsection (2), to the extent that that jurisdiction is not otherwise conferred on the High Court, is conferred on the High Court by this section.
(4)The High Court shall not make an order under subsection (2) unless:
(a)all parties consent to the making of the order; or
(b)the Court is satisfied that it is appropriate to make the order having regard to all the circumstances, including the interests of the parties and the public interest.
(5)Where an order for removal is made under subsection (1) or (2), the proceedings in the cause and such documents, if any, relating to the cause as are filed of record in the court in which the cause was pending, or, if part only of a cause is removed, a certified copy of those proceedings and documents, shall be transmitted by the Registrar or other proper officer of that court to the Registry of the High Court.
As I stated in my ruling during the hearing on 28 March 2024, this Application is not such a matter. In any event, s 40 only operates to remove a cause to the High Court under an order of the High Court. There is no evidence of any such order having been made by the High Court, let alone that the documents produced have been filed in the High Court.
I made a ruling at the hearing of the Application on 28 March 2024 that there was no reason that the Application and hearing should not proceed.
I was (and remain) satisfied that the court has jurisdiction in this matter and to hear and determine the Application. I continued to hear from counsel for the plaintiff and then from the second defendant on behalf of herself and the first defendant.
I note that, following the hearing on 28 March 2024, the defendants have filed a copy of an ex parte application filed in the Perth Registry of the High Court on 12 April 2024. That application is for leave to issue or file the document titled 'Application for Removal', the Honourable Justice Jagot having directed the Registrar on 28 March 2024 to refuse to issue or file the document without the leave of a Justice having first been obtained by the party seeking to issue it. The defendants have also filed copies of affidavits filed in support of that application.
Those documents do not change my view that the court has jurisdiction in this matter and to hear and determine the Application.
Orders made at conclusion of hearing on 28 March 2024
After hearing submissions from both parties at the hearing on 28 March 2024, I adjourned to consider the submissions. Before returning, I was informed by my staff that the first and second defendants had indicated during the adjournment that they were going to leave. The matter was re-called outside the court and there was no further appearance by either of the defendants.
Counsel for the plaintiff sought an adjournment of the Application and sought leave to put on further affidavit evidence as to the amount owing under the Loan Agreement and Mortgage and as to service of the Default Notices on the defendants. I made orders adjourning the Application to 24 April 2024, giving the plaintiff leave to file further evidence by affidavit limited to those matters, and giving the defendants leave to file any affidavit evidence purely responsive to that filed by the plaintiff.
Submissions and evidence relied on by the parties
In support of the Application, the plaintiff relies on its written submissions filed on 7 February 2024.
The plaintiff also relies upon:
(a)an affidavit of Muhammad Umair Farooqui, Secured Recoveries Case Officer employed by the plaintiff, affirmed on 17 October 2023;
(b)a further affidavit of Muhammad Umair Farooqui affirmed on 2 April 2024;
(c)an affidavit of Ben Gordon Da Silva sworn on 23 April 2024; and
(d)an affidavit of Cassandra Michelle Guy sworn on 23 April 2024.
The first and second defendants rely on documents titled:
(a)Amended Statement of Defence to Writ of Summons and Statement of Claim filed and attachments filed on 15 February 2024;
(b)Affidavit of Concetta Puglia incorporating Notice of Objection to Application for Summary Judgment filed on 31 October 2023;
(c)Affidavit of Concetta Puglia filed on 16 January 2024; and
(d)Rebuttals of the Plaintiff's outline of Submissions and attachment filed on 21 February 2024.
Evidence of the plaintiff
The following facts are derived from the evidence in the affidavits of Muhammad Umair Farooqui sworn on 17 October 2023 (Mr Farooqui's first affidavit) and 2 April 2024, and the affidavits of Ben Gordon Da Silva and Cassandra Michelle Guy sworn on 23 April 2024, which I accept.
The plaintiff and the first and second defendants entered into a written loan agreement dated 16 August 2007 (Loan Agreement), pursuant to which the plaintiff agreed to provide an equity access loan in the amount of $1,000,000 (Loan) to the first and second defendants on the terms and conditions set out in the Booklet of Standard Terms and Conditions April 2007. The first and second defendants agreed to repay the Loan in accordance with the terms and conditions of the Loan Agreement.
As security for the Loan, the first and second defendants provided a first mortgage over the Property in favour of the plaintiff, registered on 28 September 2007 with dealing number K361025M (Mortgage).
Under the terms of the Loan Agreement and Mortgage, Westpac provided the defendants with a loan facility with a credit limit of $1,000,000. Copies of the account statements recording the transactions on the loan account during the period 4 September 2007 to 3 September 2010 are attached to Mr Farooqui's first affidavit.
At the request of the defendants, by a letter of variation from the plaintiff dated 27 November 2010 and acceptance signed by each of the first and second defendants on 2 December 2010, the plaintiff agreed to increase the credit limit of the Loan to $1,050,000 (Variation).
The plaintiff provided the Loan as varied by the Variation to the first and second defendants pursuant to the Loan Agreement (as varied) and the Mortgage. Copies of the account statements recording the transactions on the loan account during the period 6 September 2010 to 3 June 2020 are attached to Mr Farooqui's first affidavit.
On 7 July 2021, the plaintiff issued notices of default (Default Notices) to each of the first and second defendant, which were sent to each of them by registered post at their residential address (the Property) and to a PO Box, as stated in the affidavit of Mr Da Silva.
The Default Notices stated that the defendants were in default of the terms of the Loan Agreement and Mortgage for failing to pay $17,496.69. The Default Notices required the first and second defendants to remedy the default by paying that amount into the loan account by 13 August 2021, failing which the plaintiff would be entitled to commence enforcement proceedings claiming the full balance owing on the loan account of $1,180,544.63 and possession of the Property.
The first and second defendants did not remedy the default within the time specified in the Default Notices, and under cl 16 of the terms of the loan agreement and cl C2 of the terms of the Mortgage, the total amount owing under the loan account became due and payable by the defendants to the plaintiff.
The plaintiff claims that the first and second defendants have failed to pay the amount due. In his further affidavit affirmed on 2 April 2024, Mr Farooqui deposes that he has reviewed the books and records of the plaintiff and, as at the date of his affidavit, 2 April 2024, the balance owing to the plaintiff under the Loan is $1,437,713.66, which includes arrears of $274,577.76. He also deposes that the interest rate applicable to the Loan is 8.71% with interest accruing at a daily rate of $343.08.
Evidence and submissions of the defendants
The first and second defendants oppose the Application.
I have considered the materials filed by the defendants. They are voluminous and repetitive and make little if any legal sense. Much of what the defendants say and seek to rely on are not matters recognised by the law that I must apply in determining the Application.
The defendants' submissions include contentions that the plaintiff has no right to enforce the Loan Agreement or the Mortgage, and that this court has no jurisdiction and no power or authority to make the orders sought.
The defendants contend, amongst other matters that:
(1)They were not provided with the Loan Agreement or Mortgage and did not receive any funds.
(2)They did not enter into the Variation.
(3)The plaintiff induced them to provide the Mortgage, pay money to the plaintiff with respect to the Loan Agreement and Mortgage and the defendants had no obligation to make payments.
(4)The plaintiff engaged in fraud.
(5)Registration of the mortgage constitutes money laundering.
(6)The plaintiff has no right to possession of the Property. The defendants seek to rely on a number of reasons for this that make no legal sense.
The defendants also submit that the 'Plaintiff is a Corporation, a Dead Entity at Law, unable to Speak, Write, Talk, Think, Hear or have the ability to Communicate with a Living man or woman or its staff, therefore Muhammad Umair Farooqui, acting as the Secured Recoveries Case officer has no merit at Law to support his affidavit.'
The defendants submit that the Application is an abuse of process, a conspiracy to pervert the course of justice and a miscarriage of justice.
The defendants also state that there is no proof as to the 'Genuine Original Documents' relied upon to prove the plaintiff's claim as there is no 'Genuine Original wet ink signed Documents Disclosed and Discovered'.
Application for leave
I will deal first with the plaintiff's application for leave to bring the Application.
The rules require an application for summary judgment to be made within 21 days after an appearance has been filed, or any later time with leave of the court.[4]
[4] RSC O 14, r 1(1).
The 21-day limit to bring an application for summary judgment reflects the view that such applications should be brought promptly and at an early stage of the proceeding, before unnecessary expense is incurred. Where there is a delay, it must be explained and the onus is on the applicant to demonstrate that the delay is justifiable in all of the circumstances.[5]
[5] See Westpac Banking Corporation v Anderson [2017] WASC 106 [38] (Pritchard J) and the authorities referred to.
I am satisfied on the evidence before me that, though there was a delay in bringing the Application, it is not an undue delay and was justifiable in the circumstances. The Application is still brought at an early stage of the proceedings. There is no evidence of any prejudice to the defendants caused by the relatively short delay in bringing the Application.
I am satisfied it is appropriate that the plaintiff have leave to bring the Application.
Principles relating to summary judgment
An application pursuant to RSC O 14 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.[6]
[6] RSC O 14 r 2(1).
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.
As the Court of Appeal said in Sutton Investments Pty Ltd v Realistic Investments Pty Ltd:[7]
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].
[7] Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24].
The plaintiff bears the burden of persuading the court that the claim is a good one and there is no defence. If the plaintiff's affidavit 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 another reason there ought to be a trial.
Disposition
The plaintiff has complied with the procedural requirements. Mr Farooqui deposes in his first affidavit to the facts verifying the claim and to his belief on the behalf of the plaintiff that there is no defence to the claim. I am satisfied the plaintiff has made out a prima facie case.
The defendants have each been served with chamber summons for summary judgment and the affidavits filed in support, as confirmed by the affidavit of Cassandra Michelle Guy sworn on 23 April 2024. The defendants both appeared at the hearing of the Application.
The affidavits relied upon by the defendants do not depose to any matters which substantiate an arguable defence to the plaintiff’s claim.
I do not accept the submissions to the effect that the plaintiff cannot prove its claim because the original wet-ink documents are not in evidence. The evidence before me includes what are deposed to as being true copies of the Loan Agreement and Mortgage signed by the defendants 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,[8] 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.
[8] Connell v Australia and New Zealand Banking Group Limited [2023] WASCA 48 [24].
The first and second defendants have not filed any affidavits or submissions in response to the Application that indicate there is any merit to the matters they have stated in their defence. The defendants make many assertions in their material, which have no legal or evidentiary basis.
The evidence and submissions of the first and second defendants and their challenge to the court's jurisdiction draw on matters that have been described as, 'pseudolaw', which has been addressed by this court in previous decisions.[9] They have no basis in law and are without merit.
[9] See for example Kelly v Fiander [2023] WASC 187 [10] ‑ [14]. Yap v Matic [No 4] [2022] WASC 422 [23]; Yap v Matic [No 7] [2023] WASC 55 [44] (Solomon J).
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 it is appropriate to grant summary judgment. In my view, the plaintiff's claim is clearly established on the evidence.
The defendants borrowed money from the plaintiff bank. They defaulted on the Loan (as varied) and the plaintiff is entitled to possession of the Property.
The matters referred to in the affidavits and submissions filed on behalf of the defendants 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.
Judgment will be entered for the plaintiff.
I will hear from the parties as to the final form of orders and as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AP
Associate to Master Russell
24 APRIL 2024
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