Westpac Banking Corporation v Puglia - [2024] WASC 142

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]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Westpac Banking Corporation v Puglia and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] WASC 142
Decision Date: 24 APRIL 2024

CaseChat Overview and Summary

Westpac Banking Corporation was the plaintiff in a mortgage action seeking possession of property against defendants Puglia. The plaintiff applied for summary judgment and the defendants opposed the application on the basis of delay and the lack of a prima facie case. The court had to decide whether the delay in bringing the application for summary judgment was justifiable and whether the plaintiff had made out a prima facie case. The court considered the established principles of summary judgment, which required careful exercise of the power to grant such judgment, only in the clearest of cases where there was no real issue to be tried. The plaintiff had to demonstrate a prima facie case, and the burden then shifted to the defendant to show there was an arguable defence or another reason there ought to be a trial. The court found that the plaintiff had complied with the procedural requirements, including the affidavit verifying the facts and stating the belief that there was no defence to the claim. The court was satisfied that the plaintiff had made out a prima facie case and that the defendants had been served with the necessary documents and had appeared at the hearing.

The court concluded that though there was a delay in bringing the application, it was not an undue delay and was justifiable in the circumstances. The application was still brought at an early stage of the proceedings, and there was no evidence of any prejudice to the defendants caused by the relatively short delay. The court was satisfied it was appropriate that the plaintiff have leave to bring the application. The court granted the plaintiff leave to bring the application for summary judgment.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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. 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. 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.