AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED -v- HAWKINS [2025] WASC 220 (5 June 2025)

The Application and materials relied upon by the defendants

1. The defendants have filed and rely upon the following materials in support of the Application:

(a) an affidavit of Mrs Hawkins sworn and filed on 8 February 2025;

(b) an affidavit of Mr Hawkins sworn and filed on 10 February 2025;

(c) a joint affidavit of Mr and Mrs Hawkins sworn and filed on 8 April 2025 (Joint Hawkins Affidavit);[4]

(d) a further joint affidavit of Mr and Mrs Hawkins sworn and filed on 29 May 2025;

(e) an outline of submissions filed on 8 April 2025;

(f) a further outline of submissions filed on 22 April 2025; and

(g) a document titled defendants' minute of proposed orders for summary judgment filed on 2 June 2025.

1. It is clear from the materials filed in support of the Application, that the defendants are frustrated with the proceedings brought against them by the plaintiff, and that there is a long history of disputes between the parties. The defendants consider the plaintiff's claim as pleaded in the amended statement of claim to be without merit and, to use their words, 'irrational, false and flawed'.
2. I will not repeat what is stated in the materials filed. I have carefully considered the affidavits and submissions filed by both parties.
3. The defendants contend that there is no genuine dispute of fact or law requiring a trial. In summary, and amongst the other things stated, the defendants submit, the plaintiff has no legal standing to bring its claim against them. They contend that the mortgage the plaintiff seeks to enforce is invalid, that the Form 4 Notice served by the plaintiff is false because it fails to describe the Property, and the plaintiff is trying to take possession of the Property unlawfully, despite having no valid mortgage over it.
4. The Form 4 Notice was not before the court. A copy was handed up by counsel for the plaintiff and marked for identification as 'MFI‑A'. It describes the Property the subject of the plaintiff's claim for possession in the proceeding.
5. The defendants also refer to what they describe as 'wrongs in lending' and say that the plaintiff should restore them to their original financial position. They refer to four contracts between them and the plaintiff, as set out in the Joint Hawkins Affidavit.
6. The defendants contend that the plaintiff has failed to identify 'the true cause of action'. They say that the amended statement of claim fails to clearly state how and why the plaintiff has the right to enforce the loan agreement, and the plaintiff has failed or refused to give specific details as to how it can legally sustain its claim following a determination by the Australian Financial Complaints Authority (AFCA).
7. A copy of the determination of the AFCA referred to is attached to the affidavit of Ezra May affirmed and filed on 1 April 2025 (May Affidavit) marked 'EM 15'. The determination is dated 28 April 2023 (Determination) and concerns a complaint made by the defendants to the AFCA after commencement of these proceedings regarding the defendants' loan facilities with the plaintiff. The defendants say that there are matters in dispute that were not dealt with in the AFCA complaint and Determination.
8. The defendants also raise a dispute in relation to the consumer lending terms and conditions claimed to be incorporated into the loan agreement, which they say alter the contract terms significantly and invalidates the plaintiff's right to enforce the loan agreement. They also raise a number of procedural matters, including that the plaintiff has not filed a reply to the amended defence and contend that, as such, the plaintiff has admitted all of the defendants' arguments.
9. The defendants seek an order for summary judgment in their favour and for dismissal of the plaintiff's claim. They also seek orders requiring the immediate discharge of the mortgage and any related security interests over the Property, and that the plaintiff restore them to their original financial position.
10. The further relief sought by the defendants appears to be that previously claimed under a counterclaim. There is no application before the court for summary judgment in relation to a counterclaim. In any event, although the amended defence includes what appears to be a claim for relief by way of counterclaim, those paragraphs (paragraphs 12 to 16) were struck out by orders made on 4 February 2025.

The plaintiff's position in relation to the Application and materials relied upon

1. The plaintiff opposes the Application. It relies on the May Affidavit and an outline of submissions in response to the Application filed on 7 May 2025.
2. In essence, the plaintiff's position is that this is not a clear case in which summary judgment should be ordered. The plaintiff says it is readily apparent from the defendant's materials that there are factual disputes between the parties, which ought to be determined at trial.
3. The plaintiff maintains that it has an arguable cause of action and that the evidentiary basis for the facts pleaded in the amended statement of claim is set out in the May Affidavit. Its position is that the Application should be dismissed.

Procedural requirements and applicable legal principles

1. Order 16 r 1(1) RSC allows a defendant to an action to apply to the court for summary judgment for the dismissal of an action on the grounds that the action is frivolous or vexatious, that the defendant has a good defence on the merits, or that the action should be disposed of summarily or without pleadings.
2. The application may be made without leave at any time up to 21 days after the defendant enters an appearance, or any later time with leave of the court.
3. The defendants each entered an appearance on 23 November 2023. Leave is therefore required to bring the Application.
4. The 21‑day limit to bring an application for summary judgment reflects a view that such applications should be brought promptly and at an early stage of the proceeding, before unnecessary expense is incurred.
5. The court has a broad discretion to grant leave to bring an application for summary judgment out of time. However, 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]
6. In exercising the discretion to extend time, it is necessary to consider the history of the proceedings, the conduct of the parties, the nature of the litigation, the consequences of a grant or refusal of leave, including any prejudice caused by the delay in bringing the application. The merits of the application are also a relevant consideration.[6]
7. The legal principles relating to an application for summary judgment pursuant to O 16 RSC are well established. They were summarised by Pritchard J (as her Honour then was) in Gerovich v Maxwell John Gerovich as executor and trustee of the estate of Anthony Gerovich[7] and, more recently, by the Court of Appeal in Pisano v South Metropolitan Health Service,[8] as follows:

1. The power to order summary judgment is one that should be exercised with great care (sometimes expressed as 'exceptional caution'). A party should not ordinarily be denied the opportunity to have its case determined following trial. It is only in the clearest of cases, where there is a high degree of certainty about the ultimate outcome of the proceedings if they were to go to trial, that summary judgment ought properly to be granted. Accordingly, summary judgment will be granted only where it is clear there is no real question to be tried.
2. Put alternatively, the relevant question for summary dismissal is whether, on the materials before the court, it has been demonstrated that the plaintiff's action should not be permitted to go to trial in the ordinary way because it is apparent that it must fail.
3. At all times the defendant retains the legal onus of demonstrating that the application for summary judgment ought to succeed. The defendant must establish that there is no real question to be tried on any cause of action raised by the plaintiff.
4. If a defendant's affidavit material establishes the basis for the summary judgment application, the plaintiff may assume an evidentiary onus to show why summary judgment should not be given. The plaintiff may, by an affidavit to show cause pursuant to O 16 r 2(1) RSC, seek to demonstrate the existence of a triable issue. The plaintiff's affidavit must condescend to particulars - it must set out facts which establish that it is reasonable to allow the plaintiff to pursue the action.
5. Actions should not be disposed of summarily where the material factual issues between the parties are in dispute. Similarly, summary dismissal should not be awarded simply because the court has formed the view that the plaintiff is unlikely to succeed on the factual issues. Unless the evidence is inherently incredible, where there is a conflict in the affidavit evidence the court should approach the summary judgment application on the basis that the facts set out in the affidavits of the party resisting judgment will be accepted at trial. But the court is not bound to accept uncritically, as raising a factual dispute calling for further investigation, every statement in an affidavit however inherently improbable in itself or equivocal, lacking in precision or inconsistent with undisputed contemporary documents or other statements by the deponent.
6. Where a plaintiff's claim depends on propositions of law apparently precluded by existing authority that may not always be the end of the matter. The court should be careful not to risk stifling the development of the law by summarily rejecting a claim if there is a reasonable possibility that the law is developing. Summary processes must not be used to stultify the development of the law where existing authority may be overruled, qualified or further explained.
7. It is not the case that summary judgment will only be given where the action is so hopeless as to not require argument. Extensive argument may be necessary to demonstrate that the plaintiff's case is so clearly untenable that it cannot possibly succeed.
8. On an application under O 16 r 1(1) RSC the plaintiff is confined to the causes of action pleaded in the statement of claim (although the statement of claim will be construed broadly and generously, with ambiguities assumed in favour of the plaintiff, and a reasonable application to amend will be permitted). It is not for the court to identify or accept possible causes of action which are arguably available on the evidence but are not pleaded.

1. It follows that, to succeed in the Application, the defendants must demonstrate on the materials before the court that the plaintiff's action should not be permitted to go to trial in the ordinary way because it is apparent that it must fail. Summary judgment should only be awarded in the clearest of cases where there the court is satisfied there is no real issue or question to be tried on any cause of action raised by the plaintiff. Actions should not be disposed of summarily where material factual issues between the parties are in dispute.

1. I will deal first with whether leave should be granted to bring the Application out of time.
2. I acknowledge, as does the plaintiff, that the defendants are self‑represented. However, the Application is brought very late. Following filing of their appearances on 23 November 2023, the defendants each filed a defence on 4 December 2023. There have been a number of procedural steps since that time.
3. In May 2024, the parties participated in a court ordered mediation, which I infer was unsuccessful in achieving a resolution. Following the mediation, orders were made on 25 June 2024 for the defendants to file and serve any amended defence and for the plaintiff to file and serve any reply.
4. The defendants filed an amended defence on 3 August 2024. The plaintiff filed an amended statement of claim on 7 August 2024.
5. By chamber summons filed on 17 September 2024, the plaintiff applied pursuant to O 20 r 19 RSC to strike out parts of the defendants' amended defence. That application was heard on 2 December 2024. For reasons delivered on 4 February 2025, orders were made on that date by Registrar Griffin striking out parts of the amended defence, and the defendants were given leave to file and serve a further amended defence.
6. The defendants brought the Application seeking summary dismissal of the plaintiff's claim and have not filed a further amended defence or any counterclaim, pending the outcome of the Application.
7. The defendants have not explained the delay in bringing the Application and, for reasons I will outline, the Application lacks merit. In the circumstances, I am not satisfied leave ought to be granted.
8. It is not necessary that I refer in any detail in these reasons to the many matters raised by the defendants. I cannot accept the defendants' submissions to the effect that this is a clear case in which summary judgment should be entered and there are no issues genuinely in dispute. It is readily apparent from the matters stated in the affidavits and submissions filed that there are material factual issues in dispute between the parties and this is clearly an unsuitable case for summary judgment.
9. Nor is it necessary that I set out in any detail the evidence in the May Affidavit or the plaintiff's submissions. I make no findings at this stage as to the merits of the plaintiff's claim. However, I am satisfied that the facts pleaded in the amended statement of claim and the facts deposed to in the May Affidavit are sufficient to support a cause of action for repayment of the alleged loan and for possession of the Property.
10. The plaintiff's claim relates to and is claimed to arise under a loan agreement between the plaintiff and the defendants dated 9 January 2012 and a mortgage registered in favour of the plaintiff over the Property.
11. The defendants refer to three other loan agreements between the plaintiff and the defendants, which pre-date the loan agreement the subject of the plaintiff's claim. No claim is brought by the plaintiff in relation to those earlier loan agreements.
12. The complaints made to AFCA by the defendants have been considered by AFCA and it has issued its Determination. By email dated 1 June 2023 to AFCA, the defendants accepted the Determination.
13. As outlined by the plaintiff, in summary, the Determination required the plaintiff to:

(a) reduce the balance of the facility, the subject of the proceeding which had increased since 14 September 2021 due to solicitor's fees and interest charges to $397,547 (Reduced Balance); and

(b) cease charging interest and fees on the Reduced Balance.

(a) stated that the defendants remained liable to repay the Reduced Balance to the plaintiff;

(b) required the defendants to provide the plaintiff with a statement of their financial position within 14 days of acceptance after which the defendants and the plaintiff were to work together to come to an agreed arrangement for payment of the Reduced Balance;

(c) stated that if a repayment arrangement was not agreed within 30 days of acceptance of the Determination, the defendants were to repay the Reduced Balance in full, which could involve selling the Property or refinancing; and

(d) stated that, if the defendants did not comply with the Determination, the plaintiff may exercise its rights to recover the Reduced Balance.

1. As submitted on behalf of the plaintiff, the Determination is pleaded in the amended statement of claim, which claims payment of only the Reduced Balance.
2. The defendants' materials refer to the plaintiff having failed to respond to their claims and to there being no issues to be tried in respect of the plaintiff's wrongdoing and obligation to restore the defendants to their original financial position. However, the subject of the Application is the plaintiff's claim, not any claims of the defendants.
3. As to the relief sought by the defendants to the effect that the mortgage be discharged and they be restored to their original financial position, they are not matters the court is able to consider or order as part of an application under O 16 RSC. In any event, no counterclaim or claim for relief is raised on the pleadings, as they stand.
4. As to the contention concerning the plaintiff's failure to file and serve a reply to the amended defence, it is a matter for the plaintiff whether it files a reply. By not doing so, it is not taken to admit the matters pleaded but to take issue with them.
5. In any event, the defendants are yet to file and serve their further amended defence. Neither this, nor any of the other procedural matters raised by the defendants, are relevant to an application for summary judgment.
6. In short, the matters raised by the defendants do not support an award of summary judgment. In the circumstances, and where there are clearly material factual matters in dispute, it is not appropriate, in my view, to determine the plaintiff's claim summarily and enter summary judgment. The Application for leave to bring the Application should be refused, and the Application should be dismissed.
7. Nothing in these reasons should be taken to anticipate the outcome of the proceedings. For present purposes, it is sufficient to conclude that this is not one of those very clear cases where the court should order summary judgment.

1. For these reasons, leave to bring the Application out of time is refused and the Application is dismissed.
2. Orders will be made to that effect. I will hear from the parties in relation to the costs of the Application.

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

[1] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 (Glew) [10].

[2] Wentworth v Rogers (No 5) ( 1986) 6 NSWLR 534, 536 ‑ 537 (Kirby P), 543 (Hope and 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 Pullen and Buss JJA agreed); Glew [10].

[4] The date is stated to be 8 March 2025 but the stamp of the Justice of the Peace witnessing the affidavit is dated 8 April 2025.

[5] See Westpac Banking Corporation v Anderson [2017] WASC 106 [38] (Pritchard J) and the authorities referred to, which also apply to an application under O 16 RSC.

[6] See Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 11] [2016] WASC 235 [4], applied in Cologna Investments Pty Ltd (as trustee for and D Panizza Family Trust) v Caranna [2023] WASC 368 [26] (Archer J). See also Deputy Commissioner of Taxation v Lafferty [2017] WASC 257 [40] - [41] (Tottle J), referring to Deputy Commissioner of Taxation v Heaton (1997) 35 ATR 450, 453 (Sanderson M); Smith v Town and Country Bank (Unreported, WASCA Library No 970716, 18 December 1997, 55 - 56 (Malcolm CJ, Kennedy J and Owen JJ agreeing); Barrick Gold of Australia Ltd v FL Smidth Inc [2007] WASC 186 [10] (Templeman J); Westpac Banking Corp v Anderson [2017] WASC 106 (Anderson) [38] (Pritchard J).

[7] Gerovich v Maxwell John Gerovich as executor of the estate of Anthony Gerovich [2018] WASC 153 [27] ‑ [32] (Pritchard J).

[8] Pisano v South Metropolitan Health Service [2023] WASCA 80 (Buss P, Vaughan and Hall JJA) (Pisano) [52]. See also Pearson v Connor [2024] WASCA 49 [36] - [37] (Mitchell and Hall JJA, Seaward J).