CAPITAL SECURITIES MORTGAGES PTY LIMITED -v- CIPUTRA [2026] WASC 74 (11 March 2026)

14.1. of the default of Bunka;

14.2 of the Defendant's breach of their obligations under the Guarantee and Mortgage;

14.3. [its demand of] payment of the sum of $457,603.17 to remedy the default;

14.4 ... pursuant to section 106 of the Transfer of Land Act 1893 (WA) and section 57(2)(b) of the Real Property Act 1900 (NSW) that if the default was not remedied the Plaintiff may:

(a) commence proceedings for the Secured Monies; and

(b) exercise power of sale in respect of [the Land]; and

(c) take such other action under the Mortgage as the Plaintiff sees fit;

14.5 [its requirement] that the Defendant provide vacant possession of [the Land] to the Plaintiff within one (1) month.

1. By orders made on 25 November 2025, Master Russell programmed the matter to this hearing and ordered:
   1. The plaintiff has liberty to file an affidavit in relation to the amount due and owing under the mortgage before the date fixed for the hearing of the Application.
2. The plaintiff relied on three affidavits of its director, Paul James Scanlon:
   1. made and filed on 5 November 2025 (first Scanlon affidavit);
   2. made on 19 December 2025 and filed on 22 December 2025 (second Scanlon affidavit); and
   3. made and filed on 10 March 2026 (third Scanlon affidavit).
3. The first Scanlon affidavit verified the facts pleaded in the SOC and deposed to his belief that the defendant had no defence to the claim and there was no issue to be tried.
4. At paragraphs [8] - [14], the plaintiff's submissions[8] set out by pinpoint references to the first Scanlon affidavit the evidence which supported the plaintiff's claims against the defendant. I accept that the plaintiff has established those matters.
5. The plaintiff submitted that:

1. The preconditions for the exercise of the Court's power to grant summary judgment pursuant to O 14 RSC have otherwise been satisfied in this action, as:

(a) this action, having been commenced by writ, is one to which O 14 RSC applies;
>
> (b) a statement of claim has been served;
>
> (c) the application is supported by an affidavit: > > > (i) verifying the facts on which the claim is based;
> >
> > (ii) stating that, in the deponent's belief, there is no defence to the claim, and > >
>
> (d) the application is further supported by an affidavit in reply. (footnote references omitted)[9]

1. In opposition to the plaintiff's application, the defendant filed:
   1. what is described as a defence and affidavit on 6 November 2025 (Defence);
   2. his unsworn affidavit on 24 November 2025 (unsworn affidavit);
   3. his affidavit on 13 December 2025 (defendant's affidavit); and
   4. written submissions on 10 March 2026 (defendant's submissions).
2. I have had regard to all the matters raised by the defendant, including those contained in the defendant's Defence and unsworn affidavit without being too concerned as to the form in which those matters have been put before the Court.
3. As I said in open court on the calling of the matter, the defendant further sent an email to my chambers on the morning of the hearing. It did not appear that the email had been copied to the plaintiff's legal representative, or to the plaintiff itself. The email was marked 'private and confidential' and referred to a 'Notice of Acceptance for Settlement'. I have not opened that email and, accordingly, have not taken it into account in my consideration.

1. As I read the defendant's material, the entry into the Deed, Guarantee or Mortgage as pleaded in the SOC is not in dispute.
2. From the documents adduced, it appears (and the defendant does not appear to dispute) that:
   1. the defendant signed the Deed as the director of Bunka in accordance with s 127 of the Corporations Act 2001 (Cth);[10]
   2. the Deed was signed on behalf of the plaintiff under a power of attorney;[11]
   3. the Guarantee was signed by the defendant;[12] and
   4. the defendant further signed that Deed and the Mortgage itself,[13] as mortgagor.[14]
3. There appears to be no dispute that Bunka received the advance pleaded in the SOC. Nor that Bunka had defaulted in making repayments as alleged in the SOC.
4. Nor does the defendant appear to dispute that Bunka and the defendant received the notices as pleaded in the SOC.
5. The defendant in her materials states that she was the sole director of Bunka.[15]

1. The legal principles governing the power to order summary judgment were summarised by the Court of Appeal in Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 at [24]:

The principles to be applied on an application for summary judgment are well-established. 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].

1. Acting Master Whitby (as her Honour then was) in Parsons v Momovivo (HK) Ltd stated that:

Once the [party seeking summary judgment] has established a prima facie right to judgment, the onus is on the [party opposing summary judgment] to satisfy the court why judgment should not be given. The [party opposing summary judgment] does not have to show a defence on the balance of probabilities only to show cause as to why there is an arguable defence.[16]

1. In Perpetual Trustee Company v Nikoloff, Acting Master Strk (as her Honour then was) summarised the threshold that a respondent to a summary judgment application must meet to demonstrate an arguable defence as follows:

An application for summary judgment is to be determined on the basis that the version of facts put forward by the respondent to the application, assuming that it is not inherently incredible, would ultimately be accepted at the trial of the action. The court is not bound to accept uncritically as raising a dispute of fact calling for further investigation every statement in an affidavit, however equivocal, lacking in precision or inconsistent with contemporary documents or other statements by the deponent. If after argument there remains real uncertainty as to the applicant's right to judgment without further investigation of the facts, summary judgment must be refused.[17] (citations omitted).

1. The defendant is self‑represented which, with respect, helps explain the lack of precision in the matters advanced in opposition to the application for summary judgment.
2. The defendant submitted in his Defence that:
   1. There are multiple substantial factual disputes requiring a trial, including:
      1. the identity of the true creditor;
      2. whether the receivable was assigned;
      3. whether [ARC Capital Group Pty Ltd] acts as servicer or beneficial owner;
      4. whether the loan is part of a trust or pooled investment fund;
      5. whether the alleged default was correctly determined;
      6. the accuracy of the amount claimed;
      7. whether the Plaintiff has standing;
      8. whether material non-disclosure or misrepresentation occurred.
   2. Affiant [sic] is advised and believe that summary judgment is inappropriate where there are unresolved issues concerning standing, or creditor identity.[18]
3. On my reading of the defendant's material, the following matters are raised in opposition:
   1. the plaintiff has not proven that it is the true legal and beneficial owner of the debt;
   2. there is a lack of accounting records or verification of the debt;
   3. there was misrepresentation and/or non‑disclosure to the defendant or the defendant was operating under a mistaken belief;
   4. there was a failure of consideration which affected proper formation of the Deed;
   5. the defendant's tender of a promissory note on 31 May 2025; and
   6. there are equitable defences or remedies which need to be resolved after a trial.

Plaintiff has not proven it is the true legal and beneficial owner of the debt

1. The defendant said in his unsworn affidavit that:
   1. There is no evidence as to whether the Plaintiff is the true legal and beneficial owner of the alleged debt.
   2. On the basis of searches and information available, the mortgage and/or receivable may have been:
      1. assigned to another entity;
      2. securitised into an investment pool;
      3. managed by a warehouse trust;
      4. transferred to or through entities such as ARC Capital Group Pty Ltd, a 'security trustee', or other SPVs.

1. The Plaintiff has provided no evidence disproving the securitisation or assignment concerns.[19]
2. These matters were somewhat expanded upon by the defendant's affidavit as follows:
   1. Throughout the life of the alleged facility, ARC Capital Group, not the Plaintiff, withdrew deposit funds from my account, issued default-related communication, and responded to requests for payout figures and settlement enquiries.
   2. Bank statements demonstrating withdrawals made after the Plaintiff stated that the facility was 'closed' are annexed and marked Exhibit BBC2.
   3. In correspondence annexed as BBC1, Omega Law states that they act for both ARC Capital Group and Capital Securities Mortgages Pty Ltd, which is inconsistent with a simple bilateral mortgage.
   4. ARC's conduct resembles that of a loan servicer or beneficial owner, not an agent. This raises a genuine and substantial factual dispute concerning:
      • who funded the loan.
      • who held the receivable;
      • who owns or controls the alleged debt now;
      • whether the receivable was assigned or included in a pooled investment structure.
   5. Without disclosure of the chain of title, assignments, or servicing arrangements, I cannot determine who the true creditor is, and therefore the Plaintiff has not established standing. (original emphasis)
3. In his submissions the defendant said:
   1. The Defendant raises a serious issue regarding whether the Plaintiff is the true legal and beneficial owner of the alleged mortgage debt.
   2. The Plaintiff has not produced evidence demonstrating: (a) whether the receivable has been assigned; (b) whether the mortgage has been transferred or securitised; or (c) whether another entity holds the beneficial interest in the alleged debt.
4. In the third Scanlon affidavit, Mr Scanlon deposed:
   1. As set out in [the first Scanlon affidavit] of 5 November 2025 the Plaintiff as lender advanced the sum of $420,000.00 to the borrower pursuant to the terms of a Loan, Security and Guarantee Deed which was secured by inter alia the Mortgagee.
   2. ARC Capital Group ('ARC') acts as the Plaintiff's mortgage manager for this loan, pursuant to which they perform a limited range of administrative loan servicing roles on a day to day basis, including being the borrower contact for general enquiries, loan statements, discharges and reporting to the Plaintiff.
   3. The loan statements exhibited to the demands referred to in [the first Scanlon affidavit] were prepared by ARC as the Plaintiff's mortgage manger, verified and approved by the Plaintiff to confirm they are correct, before being issued.
5. The Deed, Guarantee and Mortgage all have the plaintiff as the counterparty to Bunka, and, or, the defendant respectively.
6. Doing the best I can, it appears that the defendant has come to a view (the basis for which is not disclosed in the defendant's material) that somehow the plaintiff is not entitled to take this action. If required, and I am not sure that it was, the third Scanlon affidavit explains the role and position of ARC Capital Group.
7. I do not see, with respect, any arguable basis for the proposition that the plaintiff is not entitled to take this action. I do not consider the defendant has, here, raised any arguable defence.

Lack of accounting records and verification of the debt

1. The defendant said in his unsworn affidavit:
   1. I have not been provided a full, transparent accounting of:
      1. all debits and credits;
      2. any insurance or guarantee recoveries;
      3. any securitisation proceeds;
      4. any payments from third parties;
      5. any write-downs or write‑backs;
      6. any capitalisation of interest.
   2. Without full accounting, the true amount allegedly owing cannot be determined. Double recovery or unjust enrichment are possible outcomes if securitisation or insurance recoveries have occurred.
   3. These issue therefore, in the interest of justice, require discovery, expert evidence and a trial.
2. The defendant in putting these matters forward appears to proceed on the basis that the plaintiff may have received moneys from a third party source after default which should be taken into account before granting judgment.
3. If I have understood that proposition correctly, then it does not give rise to an arguable defence.
4. What is demonstrably missing is any dispute being raised on a proper basis that Bunka was not indebted in the way pleaded in the SOC or that Bunka and the defendant were not in default as pleaded in the SOC.

1. The defendant said in his unsworn affidavit:
   1. The loan facility in question was documented as a 'business loan' to Bunka Express Pty Ltd ('the Company'). I was the sole director of that company.
   2. At the time the loan was made, the Company was not actively trading, had no genuine ongoing business, and was in a vulnerable financial condition.
   3. The Company has since become ASIC-deregistered, leaving me personally exposed despite the documents portraying the borrower as a company.
   4. Despite the business-loan structure, the Plaintiff took as security my personal residential property, which serves as my family home.
   5. I did not receive adequate explanation regarding:
      1. the risks of securing a non‑trading company's facility over my home;
      2. the implications of deregistration; and
      3. the true nature of the facility.
   6. I say these matters raise fundamental issues of misrepresentation, non‑disclosure, unfair dealing and mistake, none of which can be resolved summarily.[20]
2. In his submissions the defendant said:
   1. The loan was structured as a business facility to Bunka Express Pty Ltd while the Defendant's personal residential property was provided as security.
   2. The Defendant says that he was led to believe certain matters regarding the transaction which he now understands to have been inaccurate or incomplete, including: (a) the nature and purpose of the facility; (b) the risks associated with securing the loan against the Defendant's residential property; (c) the financial position and circumstances of the borrowing company; and (d) the structure and legal effect of the transaction.
   3. These matters raise issues including: (a) whether the Defendant entered the transaction under circumstances involving undue pressure or unconscionable conduct; and (b) whether the Defendant's consent was affected by mistake or misrepresentation.

1. According to the Plaintiff's own materials, that document records:
   • Bunka Express Pty Ltd as borrower;
   • Bremen Bahtera Ciputra as guarantor; and
   • the Plaintiff as lender.
2. The Defendant disputes the validity and enforceability of the alleged guarantee and associated obligations.
3. The Defendant says that the documents were presented in circumstances involving significant urgency and time pressure.
4. The Defendant says he was asked to sign the documents in circumstances where there was little or no opportunity to properly review the documents, obtain independent advice, or fully understand the legal consequences of the transaction.
5. The Defendant says the loan and guarantee documentation comprised approximately 90 pages and was presented for signature during a brief meeting at a Dome Café, with limited time provided for review.
6. I note that no such matters were raised in the Defence, which was, of course, the defendant's first in time document made in opposition to the plaintiff's claims.
7. As I have noted, there is no dispute that the defendant was the sole director of Bunka. Nor does there appear to be any dispute that the moneys were advanced by the plaintiff.
8. The defendant has not pointed to any misrepresentation (with particularity or more generally) made by the plaintiff. Nor has the defendant identified any matter which was not disclosed to them by the plaintiff.
9. The defendant has not raised any mistake under which they were labouring at the time of entry into any of the Deed, Guarantee, or Mortgage.
10. Accordingly, the defendant has not disclosed by these matters any arguable defence.

Failure of consideration and issues re formation of contract

1. The defendant said in his unsworn affidavit:
   1. The Plaintiff has not provided any evidence verifying:
      1. the source of funds used to 'advance' the loan;
      2. whether the Plaintiff used its own capital;
      3. whether the 'advance' was created through internal book-entry crediting;
      4. whether the facility was financed by the value of my signed documents themselves.
   2. If the loan advance was not funded by genuine capital but created as a ledger entry based on my signature and security, then the issue of consideration arises.
   3. Consideration disputes require expert accounting analysis, evidence and cross‑examination. They cannot be resolved summarily.[21]
2. As noted, the defendant does not dispute the advancing, and receipt, of the funds as pleaded in the SOC.
3. None of these matters raised can or do give rise to an arguable defence in my view.

1. In his unsworn affidavit, the defendant said:
   1. On 31 May 2025, I executed a promissory note identified as PN0000001 as a formal tender and special deposit to settle or set off the alleged debt.
   2. On 6 June 2025, I mailed a certified copy of the note, with my covering letter and memorandum of law, to the Plaintiff. It was received on 12 June 2025.
   3. The Plaintiff has not:
      1. returned it;
      2. accounted for it;
      3. responded to it in any meaningful way.
   4. The Plaintiff's failure to address a good-faith tender raises issues in equity, including oppression, unfairness, and failure to mitigate, which defeat summary judgment.
2. None of the matters raised here give rise to an arguable defence. There is nothing to suggest that the defendant has called on, or had the benefit of, the promissory note asserted by the defendant.

1. By the unsworn affidavit, the defendant said:
   1. Mortgage claims invoke the equitable jurisdiction of the Court. I seek and intend to pursue:
      1. account and inquiry;
      2. redemption on fair terms;
      3. investigation of securitisation and standing;
      4. declarations as to the true state of title;
      5. orders requiring the Plaintiff to elect between redemption and foreclosure in accordance with equity.
   2. These remedies are incompatible with summary judgment, which is only appropriate where no factual or equitable issues exist.
2. I do not understand these matters to raise any separate or different issues from those which the defendant has raised (and which I have dealt with, elsewhere). Accordingly, I record that I do not consider that any of these matters raised give rise to an arguable defence.

1. I find that the plaintiff by its material established at least a prima facie case that the defendant is in default of the obligations in the Guarantee and Mortgage.
2. Adopting the language used by Acting Master Strk in Nikoloff, as quoted above, I have no uncertainty as to the plaintiff's right to summary judgment. The defendant has put no material before the Court which gives rise to any uncertainty. For the above reasons, the plaintiff is entitled to summary judgment on its application.
3. The second order which I made, as per the plaintiff's chamber summons of 5 November 2026, was for its costs to be paid by the defendant on an indemnity basis.
4. I accept that the plaintiff's submissions,[22] with the references to its contractual rights in the Deed, support the making of that second order as to costs.

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

[1] Affidavit of Paul James Scanlon made and filed on 5 November 2025 (first Scanlon affidavit) [7.1] and Attachment 'PSJ-3' at page 14.

[2] Part of 'PJS-3' at pages 52 - 55 of the first Scanlon affidavit.

[3] First Scanlon affidavit [10] and Attachment 'PJS‑5' at page 109.

[4] First Scanlon affidavit [16.1] and Attachment 'PJS‑6' at page 113.

[5] First Scanlon affidavit [21.1] and Attachment 'PJS‑10' at page 122.

[6] First Scanlon affidavit [21.1] and Attachment 'PJS‑10' at page 122.

[7] First Scanlon affidavit [18.1] and Attachment 'PJS‑8' at page 117.

[8] Plaintiff's submissions filed on 22 December 2025 (Plaintiff's submissions).

[10] Part of 'PJS‑3' at page 20 of the first Scanlon affidavit; see Defence [3] under title 'Affidavit in Support' at page 2.

[11] Part of 'PJS‑3' at page 24 of the first Scanlon affidavit.

[12] Part of 'PJS‑3' at pages 21 and 22 of the first Scanlon affidavit; see Defence [3] under title 'Affidavit in Support' at page 2.

[13] Part of 'PJS‑5' at page 109 of the first Scanlon affidavit; see Defence [4] under title 'Affidavit in Support' at page 3.

[14] Part of 'PJS‑3' at page 23 of the first Scanlon affidavit; see Defence [3] under title 'Affidavit in Support' at page 2.

[15] See, for example, unsworn affidavit [4].

[16] Parsons v Momovivo (HK) Ltd [2020] WASC 75 [20].

[17] Perpetual Trustee Company v Nikoloff [2020] WASC 389 [14].

[19] Unsworn affidavit at page 3. It should be noted that in the unsworn affidavit there are two sets of paragraphs numbered [18] - [19]: the above quoted paragraphs appear on page 3 of the unsworn affidavit.

[20] See the defendant's affidavit [19] - [25] which is to similar effect.

[21] It should be noted that in the unsworn affidavit there are two sets of paragraphs numbered [18] ‑ [19]: the above quoted paragraphs appear on page 4 of the unsworn affidavit.

[22] Plaintiff's submissions filed on 22 December 2025 [17] - [20].