AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED -v- GEBARSKI [2025] WASC 416 (1 October 2025)

(a) the plaintiff has complied with the procedural requirements for an application for summary judgment and made out a prima facie case;

(b) the defendants have not discharged their evidentiary burden of establishing that there is an arguable defence to the plaintiff's claim, an issue or question to be tried, or some other reason why there ought to be a trial of the action;

(c) although the first defendant has entered into a contract for the sale of the Property, that does not operate to defeat the plaintiff's entitlement to an order for possession and to judgment for the amounts owed; and

(d) this is a clear case in which it is appropriate to enter summary judgment.

1. As such, I granted the Application, made an order that the first defendant deliver vacant possession of the Property to the plaintiff within 28 days and orders that the first defendant pay the plaintiff the amounts owing under the Home Loan Agreement, Business Loan Agreement, Guarantee and Second Mortgage. The terms of the Second Mortgage provide for payment of interest after judgment in relation to the amount owing under the Business Loan Agreement. I also made an order that the second defendant pay the plaintiff the amount owing under the Business Loan Agreement.
2. I gave brief oral reasons for my decision at the hearing of the Application. I said I would publish more detailed reasons for my decision. These are those reasons.

Submissions and evidence relied on by the parties

1. In support of the Application, the plaintiff relies on written submissions filed on 10 September 2025, and the following affidavits:

(a) affidavit of Ezra May affirmed on 28 April 2025 (May Affidavit);

(b) affidavit of Brooke Thomason sworn on 29 April 2025 (Thomason Affidavit); and

(c) two affidavits of Cassandra Michelle Guy sworn on 18 September 2025 (First Guy Affidavit) and 24 September 2025 (Second Guy Affidavit).

1. By the consent of the parties recorded in a memorandum of consent orders filed on 8 May 2025, orders were made on that date requiring the defendants to file and serve any affidavits in opposition to the Application by 29 May 2025, and to file and serve any outline of submissions in opposition to the Application by 26 June 2025. The same orders required the plaintiff to file and serve any affidavits in reply and an outline of submissions in support of the Application by 12 June 2025.
2. The defendants did not file any affidavits in opposition to the Application. The plaintiff filed its outline of submissions on 10 September 2025. Given the late filing of the plaintiff's submissions, orders were made on 10 September 2025 extending the time for the defendants to file any outline of submissions in opposition to the Application to 17 September 2025.
3. The defendants have not filed any affidavits or submissions in opposition to the Application and did not attend the hearing of the Application. They have entered into a contract for sale of the Property, settlement of which is scheduled for 8 October 2025, but the sale proceeds are anticipated to be insufficient to repay the balance owing under the loan agreements. The shortfall is approximately $280,000 based on the material before the court.[1]
4. I was satisfied the defendants were on notice of the hearing and proceeded to hear the Application in their absence. They have had the opportunity to file materials in opposition to the Application but have not done so.

Procedural requirements and applicable legal principles relating to summary judgment

1. An application pursuant to O 14 RSC 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.[2]
2. The principles that apply to an application for summary judgment are well established. The key principles were summarised by the Court of Appeal in Sutton Investments Pty Ltd v Realistic Investments Pty Ltd, as follows:[3]

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 in 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].

1. The plaintiff bears the burden of persuading the court that the claim is a good one and there is no defence to it. If the plaintiff's affidavit in support of the Application makes 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.[4]
2. A defendant seeking to demonstrate an arguable defence or some other reason why there ought to be a trial must condescend to particulars and provide sufficient details of their defence.[5]

The facts relevant to the plaintiff's claim and the Application

1. The following facts, verified by the unchallenged evidence in the affidavits filed by the plaintiff, make up the essential elements of the plaintiff's claim.

1. On or about 22 July 2011, the plaintiff and the first defendant entered into the Home Loan Agreement,[6] pursuant to which the plaintiff loaned the first defendant $176,241.12 (Home Loan Amount).[7]
2. The first defendant agreed to repay the Home Loan Amount to the plaintiff plus accrued interest by 360 monthly payments of principal and interest instalments, in accordance with the terms and conditions of the Home Loan Agreement.[8]
3. Repayment of all money payable under the Home Loan Agreement and performance of the first defendant's obligations under it are secured by the First Mortgage.[9]
4. The plaintiff advanced the Home Loan Amount to the first defendant on about 22 July 2011.[10]
5. On or about 29 May 2015, the plaintiff and the second defendant entered into the Business Loan Agreement, pursuant to which the plaintiff provided the second defendant a loan amount of $238,707 (Business Loan Amount) and two credit facilities with credit limits of $200,000 (First Overdraft Amount) and $100,000 (Second Overdraft Amount).[11]
6. The second defendant agreed to repay the Business Loan Amount and any amount in excess of the facility limit of the First Overdraft Amount and the Second Overdraft Amount, to the plaintiff in accordance with the terms and conditions of the Business Loan Agreement.[12]
7. By the Guarantee, repayment of all money payable under the Business Loan Agreement and performance of the second defendant's obligations under it are guaranteed by the first defendant,[13] and secured by the Second Mortgage.[14]
8. The plaintiff advanced the Business Loan Amount and made available the First Overdraft Amount and Second Overdraft Amount to the second defendant on or about 29 May 2015.[15]

1. The Home Loan Agreement incorporated the plaintiff's Consumer Credit Contract Schedule and the plaintiff's Consumer Lending Terms and Conditions Version 13 (Home Loan Terms and Conditions).[16]
2. The Business Loan Agreement incorporated the plaintiff's Business Letter of Offer and the plaintiff's Business Banking Finance Conditions of Use (Business Loan Terms and Conditions).[17]
3. Relevantly, pursuant to the Home Loan Terms and Conditions and the Business Loan Terms and Conditions, as applicable:

(a) the first defendant would be in default of the Home Loan Agreement and the second defendant would be in default of the Business Loan Agreement if they failed to pay, any amount due, on time;[18]

(b) if either of the defendants were in default, the plaintiff could issue a notice to them of the default and, if the default was not remedied within 30 days after service of the notice, the plaintiff could require the first defendant or the second defendant, as applicable, to pay the whole amount owing under the relevant loan agreement.[19]

1. The Guarantee incorporated the plaintiff's Guarantee and Indemnity Terms and Conditions 4051 (Guarantee Terms and Conditions).[20] Relevantly, under the Guarantee Terms and Conditions, the first defendant:

(a) guaranteed the due and punctual payment by the second defendant of all money owing to the plaintiff under the Business Loan Agreement;[21]

(b) agreed to pay to the plaintiff on demand any money that the second defendant failed to pay on time in accordance with the terms of the Business Loan Agreement;[22]

(c) secured all money owing under the Business Loan Agreement by the Second Mortgage;[23]

(d) agreed to pay any costs and expenses incurred by the plaintiff in enforcing its rights under the Guarantee;[24] and

(e) agreed to pay interest on the loan amounts at the rate specified in the Business Loan Agreement before and after any judgment.[25]

1. The First Mortgage incorporated by reference the terms contained in Memorandum of Provisions G172079 (First Memorandum of Provisions).[26] The Second Mortgage incorporated by reference the terms contained in Memorandum of Provisions I867952 (Second Memorandum of Provisions).[27]
2. Although some of the clause numbers differ between the First Memorandum of Provisions and the Second Memorandum of Provisions, the terms that apply to each of the First Mortgage and the Second Mortgage are to the same effect and provide that:

(a) the first defendant would be in default of the relevant mortgage if he failed to repay any of the amounts in accordance with the terms of the Home Loan Agreement or the Guarantee;[28]

(b) if the first defendant was in default, the plaintiff would:

(i) issue a notice to the first defendant requiring the default to be remedied by the time stated in the notice;[29]

(ii) be entitled to demand payment of any costs and expenses on a full indemnity basis incurred by the plaintiff in exercising its powers under the Second Mortgage;[30]

(c) if the defendant failed to comply with the notice by the time stated, the whole of the amounts owing under the Home Loan Agreement and the Guarantee and the Mortgages, would become immediately due and payable and the plaintiff would be entitled to possession of the Property;[31] and

(d) the first defendant agreed that he would pay interest on the amounts due under the Guarantee and Business Loan Agreement at the rate specified in the Business Loan Agreement and that interest would accrue both before and after any judgment.[32]

1. As at 21 March 2024, the first defendant had failed to pay $21,103.37 to the plaintiff, being an amount due and payable under the Home Loan Agreement. As a result, he was in default under the terms of the Home Loan Agreement and the First Mortgage, as outlined. [33]
2. The plaintiff issued a notice of default by ordinary post to the first defendant on 27 March 2024 (Home Loan Default Notice). The Home Loan Default Notice stated that the first defendant was in default and, if the default was not remedied by paying the arrears by 10 May 2024, the whole amount owing (of $195,806.79 plus costs and charges) would be due and payable and the plaintiff may commence proceedings claiming the whole amount owing and/or for possession of the Property pursuant to the terms of the Home Loan Agreement and the First Mortgage.[34]
3. As at 27 September 2023, the second defendant had failed to pay a total amount of $384,960.83 to the plaintiff under the terms of the Business Loan Agreement, being:[35]

(a) arrears of $46,373.92 in respect of the Business Loan Amount;

(b) arrears of $229,382.61 in respect of the First Overdraft Amount; and

(c) arrears of $109,204.30 in respect of the Second Overdraft Amount.

1. As a result, the second defendant was in default under the terms of the Business Loan Agreement, and the first defendant became liable for the amount due and payable pursuant to the terms of the Guarantee and the Second Mortgage.[36]
2. The plaintiff issued a notice of default to the second defendant by ordinary post on 3 October 2023 (Business Loan Default Notice). The Business Loan Default Notice stated that the second defendant was in default and, if the default was not remedied by 13 November 2023 by paying the arrears of $384,960.83, the whole amount outstanding of $911,854.98 would be due and payable, and the plaintiff may take action to recover the whole amount, further interest, costs and charges.[37]
3. The plaintiff issued a notice of default to the first defendant by ordinary post on 3 September 2024 in respect of the Guarantee (Guarantor Notice). The Guarantor Notice stated that the first defendant was in default of the terms of the Guarantee and the Second Mortgage and, if the defaults were not remedied by 14 October 2024, the plaintiff may commence enforcement proceedings.[38]
4. The first and second defendants did not remedy the respective defaults within the time specified in the Home Loan Default Notice, Business Loan Default Notice and Guarantor Notice.[39]
5. The amount due and owing as at 24 September 2025, including accrued interest:

(a) by the first defendant under the Home Loan Agreement, is $219,639.71;[40] and

(b) by the second defendant under the Business Loan Agreement, is $1,257,391.03, being $340,104.88 under the Business Loan, $608,513.71 under the first overdraft and $308,772.44 under the second overdraft.[41]

1. The plaintiff has complied with the procedural requirements for an application for summary judgment. Mr May deposes in the May 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 also satisfied the plaintiff has made out a prima facie case.
2. The first defendant and the second defendants borrowed money, as outlined in each case, from the plaintiff bank. They defaulted on the loans and facilities by failing to make payments by the dates they were due, and have failed to remedy the defaults after being served with the default notices. The first defendant is liable as guarantor for payment of the amounts owing by the second defendant under the Business Loan Agreement, which are secured by the Second Mortgage.
3. The plaintiff has established that it is entitled to an order for possession of the Property and to judgment for the outstanding amounts, on the evidence adduced.
4. The first and second defendants have not filed any affidavits or submissions in response to the Application, were on notice of the hearing and did not attend to oppose the orders sought.
5. 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.

1. For these reasons, I granted the plaintiff's application for summary judgment and made an order that the first defendant deliver up vacant possession of the Property to the plaintiff within 28 days, that is by 22 October 2025. I also made orders to the following effect and for the defendants to pay the plaintiff's costs of the action, including the costs of the Application:
   1. The first defendant pay the plaintiff $219,639.71, being the amount outstanding under the Home Loan Agreement.
   2. The second defendant pay the plaintiff $1,257,391.03, being the amount outstanding under the Business Loan Agreement.
   3. The first defendant pay the plaintiff $1,257,391.03, being the amount payable under the Guarantee and Second Mortgage together with interest from judgment until payment, pursuant to cl 9.5 of the Second Mortgage.

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

[1] Second Guy Affidavit [2] - [5], 'A', 'B'.

[3] Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24].

[4] Westpac Banking Corporation v Anderson [2017] WASC 106 [53] - [54], [103]. See also Deputy Commissioner of Taxation v Lafferty [2017] WASC 257 [54] (Tottle J) and the authorities referred to.

[5] Deputy Commissioner of Taxation v Lafferty [54].

[6] Statement of Claim (SOC) [3]; May Affidavit [5],[21] ' B'.

[7]SOC [7(a)]; May Affidavit [9(a)], [21] 'B'.

[8] SOC [7(e)]; May Affidavit [7], [9(d)(i)], [9(e)], [21] 'B'.

[9] SOC [7(g)]; May Affidavit [9(g)], [21] 'E'.

[10] SOC [7(k)(i)]; May Affidavit [9(k)(i)].

[11] SOC [7(b) and (c))]; May Affidavit [6], [8], [9(b)] - [9(d)].

[12] SOC [7(f)]; May Affidavit [9(f)].

[13] SOC [8(b) and (c)]; May Affidavit [10].

[14] SOC [8(a)]; May Affidavit [10(d)], [21] 'F'.

[15] SOC [7(k)(ii) and (iii)]; May Affidavit [9(k)(ii)] - [9(k)(iii)].

[16] SOC [5]; May Affidavit [7], [21] 'B'.

[17] SOC [6]; May Affidavit [8], [21] 'C'.

[18] Home Loan Terms and Conditions, General Conditions, cl 10; Business Loan Terms and Conditions, cl 18.

[19] Home Loan Terms and Conditions, General Conditions, cl 10; Business Loan Terms and Conditions, cl 19.

[20] SOC [8(a)]; May Affidavit [10(a)].

[21] SOC [8(b)]; May Affidavit [10(b)].

[22] SOC [8(c)]; May Affidavit [10(c)].

[23] SOC [8(d)]; May Affidavit [10(d)].

[24] SOC [8(e)]; May Affidavit [10(e)].

[25] SOC [8(f)]; May Affidavit [10(f)].

[26] SOC [9]; May Affidavit [11], [21] 'E'.

[27] SOC [10]; May Affidavit [12], [21] 'F'.

[28] First Memorandum of Provisions, cl 7.1; Second Memorandum of Provisions, cl 7.1.

[29] First Memorandum of Provisions, cl 7.3; Second Memorandum of Provisions, cl 7.2.

[30] Second Memorandum of Provisions, cl 9.2.

[31] First Memorandum of Provisions, cl 7.4; Second Memorandum of Provisions, cl 7.3(a).

[32] Second Memorandum of Provisions, cl 9.5.