For the reasons set out earlier in these reasons, leave was granted to the plaintiff to bring the Application out of time. I was also satisfied on the evidence before me, as outlined, that the plaintiff has complied with the other procedural requirements for an application for summary judgment and has made out a prima facie case that it is entitled to possession of the Property under the terms of the Loan Agreement and Mortgage.
Mr Easwarapadcham and Ms Thomason have sworn affidavits deposing to the facts verifying the plaintiff's claim. Mr Easwarapadcham has deposed to his belief on behalf of the plaintiff that there is no defence to the claim.
In my view, the plaintiff's case and entitlement to an order for possession of the Property is clearly established on the evidence before the court. The Borrowers defaulted under the terms of the Loan Agreement and Mortgage by failing to make repayments when they were due and payable. Default Notices have been served on the Borrowers. The default has not been remedied.
Whilst I have some sympathy for the defendant, who appears to have been left to deal with the Borrowers' default of the Loan Agreement and Mortgage, the materials filed and relied upon by her do not disclose any facts that may constitute an arguable defence to the plaintiff's claim, that there is an issue or question to be tried or some other reason why the action should proceed to trial.
In the circumstances deposed to in the May 2025 Guy Affidavit, the plaintiff has made extensive searches to locate Mr Chang and to ascertain an address for him at which proceedings, if issued, could be served. However, the plaintiff's efforts have been unsuccessful. The defendant also states in her evidence that she believes Mr Chang is overseas but does not know his whereabouts.
The plaintiff has stated that it is willing to commence proceedings and seek orders against Mr Chang if and when he is located and returns to Australia.[34] However, as submitted on behalf of the plaintiff, the Borrowers are jointly and severally liable for the loan and their obligations under the Loan Agreement and Mortgage. As such, the plaintiff is entitled to enforce its rights under the Mortgage solely against the defendant. As Mr Chang is not a party to these proceedings there is no obligation on the plaintiff to serve any documents relating to the proceedings on him.
As to the defendant's concerns as to any claims that may be made against her, or other ramifications of an order being made for possession of the Property, those are not matters that give rise to a defence to the plaintiff's claim. It is not apparent what claims Mr Chang may have. He too is jointly and severally liable under the terms of the Loan Agreement and Mortgage. In any event, in the absence of an arguable defence or another reason why there ought to be a trial of the action, the plaintiff, having established a prima facie case, is entitled to an order for possession of the Property.
In relation to the present occupants of the Property, any order for possession made in favour of a mortgagee against one proprietor may be enforced against any third party claiming an interest in the land. As submitted on behalf of the plaintiff, a mortgagee has the same rights and remedies at law and in equity as if legal estate in the land had been actually vested in the mortgagee. A mortgagee may bring an action for ejectment under its statutory rights pursuant to its registered mortgage to recover land, in the same manner as an action under its contractual rights in a mortgage.[35] A mortgagee's action for possession of land concerns the better right to possession as between the mortgagor and the mortgagee. As observed by Young JA in Hanshaw v National Bank Ltd, [36] the rights of any third person who may be interested in the land such as a tenant or other occupant are irrelevant.
As to the issues raised by the defendant about the risk of any sale of the Property being at less than market value, and that sale should be subject to the court's supervision, there is no basis upon which such an order may be made. Orders are routinely made in actions seeking orders for possession by a mortgagee in the terms sought by the plaintiff. The court's supervisory jurisdiction in relation to a mortgagee sale would only be enlivened in relation to such a sale where there is evidence of bad faith, corruption or collusion with the purchaser or of an actual intention to defraud the mortgagor, and subject to a bona fide buyer's right to have a sale contract completed.[37] As submitted, on behalf of the plaintiff, there is no evidence of bad faith, corruption or collusion by the plaintiff, and no more than mere speculation as to a possible sale of the Property at a value other than market value.
I recognise that summary judgment should only be awarded in the clearest of cases. I am satisfied that this is such a case, and that it is appropriate to grant summary judgment.
[2]
For these reasons, I was satisfied that the time for bringing the Application should be extended to 4 April 2025 and I made an order to that effect. I granted the plaintiff's application for summary judgment and made an order that the defendant deliver up vacant possession of the Property to the plaintiff.
As to the time by which the defendant is to deliver up possession of the Property, the plaintiff sought an order that the plaintiff do so within 14 days of the date of the orders. This was not opposed by the defendant. Accordingly, I made an order requiring the defendant to deliver up vacant possession of the Property to the plaintiff within 14 days of the date of the orders, being 14 August 2025.
[3]
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
[4] Cologna Investments [26], [27.2]. See also Mineralogy Pty Ltd v Sino Iron (No 11) [2016] WASC 235 [4] (Chaney J); Deputy Commissioner of Taxation v Lafferty [2017] WASC 257 (Lafferty) [40] ‑ [41] (Tottle J); Westpac Banking Corporation v Anderson [2017] WASC 106 (Westpac Banking) [38] (Pritchard J).
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 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].