Westpac Banking Corporation v Slater

[2018] WASC 93

[2018] WASC 93

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS
CITATION	:	WESTPAC BANKING CORPORATION -v- SLATER [2018] WASC 93

CORAM	: MASTER SANDERSON
HEARD	: 15 MARCH 2018
DELIVERED	: 28 MARCH 2018
FILE NO/S	:  CIV 2439 of 2017
BETWEEN	: WESTPAC BANKING CORPORATION

Plaintiff

AND

BRETT JASON SLATER

Defendant

Catchwords:

Practice and procedure - Application for summary judgment - Turns on own facts

Legislation:

National Consumer Credit Protection Act 2009 (Cth)

Rules of the Supreme Court 1971 (WA)

Result:

Extension of time granted
Judgment entered for plaintiff

[2018] WASC 93

Category: B

Representation:

Counsel:

Plaintiff : Mr L K Swithenbank

Defendant : In person

Solicitors:

Plaintiff : Jackson McDonald

Defendant : In person

Case(s) referred to in decision(s):

Nil

[2018] WASC 93

MASTER SANDERSON

MASTER SANDERSON:

1. This is the plaintiff's application for an extension of time to bring a summary judgment application and for summary judgment. The application is supported by an affidavit of Eleni Nisa sworn 6 November 2017. In opposition to the application the defendant has filed two affidavits the first sworn 2 January 2018, the second sworn 22 January 2018. He has also filed a defence and submissions. The defendant is self-represented.

2. The statement of claim pleads the defendant is the registered proprietor of certain property in West Busselton. On 1 November 2009 the plaintiff and the defendant entered into a loan agreement. A number of the terms and conditions of the loan agreement are pleaded in par 3 of the statement of claim. None of the terms is exceptional and the arrangement fits the standard model for such agreements.

3. To underwrite the loan the defendant mortgaged the property to the plaintiff. The mortgage incorporated provisions of a memorandum which again is in standard form.

4. The plaintiff pleads the defendant defaulted under the mortgage in or about December 2016. A default notice was issued and the default was not remedied. The plaintiff seeks delivery up of possession of the property together with payment of the amount said to be owing under the loan agreement.

5. The affidavit of Ms Nisa by par 3 confirms that she believes the contents of the statement of claim to be true and correct. She goes on to attach to her affidavit copies of the loan agreement, the mortgage and other relevant documents. She confirms the defendant's default and the defendant's failure to deliver up the mortgage property. She also confirms the issue of the default notice and attaches a copy of that notice to the affidavit. In all respects the documents confirm what is pleaded in the statement of claim.

6. It is important to note that under O 14 of the Rules of the Supreme Court 1971 (WA) what a plaintiff seeking summary judgment is required to do is confirm that they believe there is no defence to the action and the pleaded claim will succeed. Strictly speaking there is no necessity to attach to any affidavit in support of a summary judgment application all of the relevant documents. That however is routinely done. In cases where a defendant is not represented - and that is in most cases where the action seeks to enforce a mortgage - it is prudent

[2018] WASC 93

MASTER SANDERSON

for a plaintiff to attach the relevant documents. That means independent of any submissions put by the defendant the documents can be checked to ensure that the plaintiff is entitled to the judgment it seeks. However, once an affidavit confirms the contents of the statement of claim and the deponent to that affidavit swears they believe there is no defence the evidentiary onus - not the legal onus but the evidentiary onus - shifts to the defendant.

1. Having read the defendant's affidavits and submissions I have some difficulty understanding the basis of the opposition and why the defendant says he is not liable to repay the plaintiff. It would appear that the defendant believes there are three triable issues. First, he alleges the plaintiff failed to perform the loan agreement by transferring a liability instead of loaning money direct to him. Second, it is alleged there has been some form of misleading or deceptive conduct because the plaintiff has failed to fully disclose 'credit books, accounts, statements and arrangements necessary to prove a loan has occurred'. Third, it is alleged the plaintiff failed to comply with s 227 and s 228 of the National Consumer Credit Protection Act 2009 (Cth). In addition to these matters, the defendant also appears to say that Ms Nisa is not in a position to swear to matters contained in her affidavit.

2. Having given careful consideration to the defendant's affidavits and his submissions I am satisfied there is no substance in his opposition to this application. The documents attached to Ms Nisa's affidavit clearly show that money was loaned by the plaintiff to the defendant. That seems to be confirmed by pars 4 - 6 of the defendant's affidavit sworn 2 January 2018. So far as the defendant's evidence is concerned it raises nothing to suggest there has been any misleading and deceptive conduct or any concealment such as would amount to a breach of the National Consumer Credit Protection Act. Nor is there anything in the evidence to suggest the plaintiff has breached the Banking Code of Practice.

3. As I have indicated above the affidavit of Ms Nisa and the attachments thereto go much further than was strictly necessary to engage the summary judgment procedure. However, an examination of these documents shows the defendant is liable to the plaintiff as alleged and the plaintiff is entitled to relief. There is nothing in the affidavit material to suggest that Ms Nisa has in some ways exceeded her authority.

[2018] WASC 93

MASTER SANDERSON

1. The remaining question is whether an extension of time ought be granted to the plaintiff to bring this application. In par 19 of her affidavit Ms Nisa explains the delay. Essentially the plaintiff was providing the defendant with the opportunity to advance any argument in opposition to the application. They should not be penalised for that indulgence. Furthermore, the position in this case is so clear cut there would be no benefit to any party in refusing to extend time to the plaintiff to bring this application. Accordingly I will grant the extension as sought.

2. The orders then will be as follows:

   1.          The plaintiff have leave to bring this application.

   2.          Judgment be entered against the defendant for the amount of the loan plus outstanding interest.

   3.          Within 28 days the defendant deliver up possession of the property.

   4.          The defendant pay the plaintiff's costs of this application including the reserved costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

DG

ASSOCIATE TO MASTER SANDERSON

28 MARCH 2018