Capital Securities Mortgages Pty Ltd v Jayme & Anor [2026] VCC 467

1. Capital filed the following in support of its application:

(a) Affidavit of Faith Rosalie Newman, affirmed 23 October 2025;

(b) Affidavit of Paul Raymond Box, sworn 22 December 2025.

(c) First Affidavit of Jason Kean Quah, sworn 27 January 2026;

(d) Second Affidavit of Jason Kean Quah, sworn 27 January 2026; and

(e) Affidavit of Patrick Anthony Fabris, sworn 15 April 2026.

1. The Jaymes have filed a document that purports to be an affidavit of the second defendant. It is irregular in form and does not constitute evidence. I will have regard to it as a submission rather than as an affidavit.
2. In this document, Ms Jayme in effect admits that she and Mr Jayme are liable to the defendant and that the loan is in arrears. She says that they have attempted to meet their obligations by communicating with Capital in relation to the outstanding balances. They have sought more time to pay. They have also attempted to access funds from other sources including superannuation and have explored the possibility of selling the property.
3. She notes that the balance has been increased by the accrual of interest, fees and charges and says that she hasn't been able to obtain an accounting from the plaintiff.
4. Ms Jayme concludes by asking that summary judgment not be entered and that the proceeding progress through its usual processes, as this may lead to a practical resolution of the matter without the need for unnecessary litigation.

1. The test to be applied in a summary judgment application was settled by the Court of Appeal in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (Lysaght).[1] That is, whether the respondent to the application for summary judgment has a 'real' as opposed to a 'fanciful' chance of success.
2. In Lysaght, Warren CJ and Nettle JA said at [35]:[2]

(a) The test for summary judgment under s 63 of the Civil Procedure Act 2010 (CPA) is whether the respondent to the application for summary judgment has a "real" as opposed to "fanciful" chance of success;

(b) the test is to be applied by reference to its own language and without paraphrase or comparison with the "hopeless" or "bound to fail test" essayed in General Steel;

(c) it should be understood, however, that the test is to some degree a more liberal test than the "hopeless" or "bound to fail" test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent's case is not hopeless or bound to fail, it does not have a real prospect of success;

(d) at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.

1. The 'no real prospect of success' test was re-affirmed by the Court of Appeal in Mandie v Memart Nominees Pty Ltd.[3] Kyrou, Ferguson and McLeish JJA observed (omitting citations):

[42] The CP Act has changed the litigation landscape. One of the main purposes of that legislation is to reform practice and procedure in civil proceedings, including by reforming the law relating to summary judgment. More than ever, the focus is now pointedly on efficiency and cost-effectiveness, albeit that they are not the only, nor the predominant, considerations...

[45] According to Lysaght: a prospect which is not 'real' is 'fanciful'; although the 'no real prospect of success' test in s 63(1) of the CPA is more liberal than the common law test of 'hopeless' or 'bound to fail', there may not be much difference between them in practice; and, properly understood, a real question to be tried is one which realistically might result in the respondent to an application for summary judgment succeeding in the proceeding.

1. The discretion of the Court to grant summary judgment under the CPA is subject to s 64 which provides that the Court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success, the dispute is of such a nature that only a full hearing on the merits is appropriate.[4]
2. The High Court has separately emphasised that the power to grant summary judgment must be exercised with caution.[5]

Legal Principles for the Striking out of a Pleading

1. In the alternative, the plaintiff seeks orders striking out each of the amended defences to enter judgment in default.
2. The power to strike out a pleading is found in Rule 23.02 of the County Court Civil Procedure Rules 2018 (Vic) (County Court Rules). That rule permits the Court to strike out a pleading where it has a tendency to embarrass the fair conduct of proceedings. A pleading will be regarded as embarrassing if it places the opposite party in the position of not knowing the case that is alleged against them. This may occur where the pleading is unintelligible, vague, ambiguous, or expressed in terms that are so general that they do not give proper notice of the issues to be met. The meaning of "embarrass" was explained by Derham AJ in Sarto v Sarto at [42(c)],[6] where his Honour said:

"In general, a pleading or indorsement is embarrassing when it places the opposite party in the position that they do not know what is alleged against them; thus a pleading which is unintelligible, or is vague or ambiguous, or is too general is embarrassing."

3. The principles governing pleadings, and the purpose of the rules, are well established. The rules exist to ensure compliance with proper pleading standards and to secure clarity and fairness in litigation. As was stated in Meckiff v Simpson,[7] the purpose of the rules is to secure compliance with proper pleading so that the issues in dispute may be defined and fairly tried. Pleadings must set out with sufficient precision the material facts relied upon so that the other party is not left to guess the nature of the case they are required to answer.
4. Where a pleading is substantially defective, the Court is not required to examine the document line by line to identify passages that may be salvageable. Rather, if the form of the pleading as a whole is such that it fails to perform the essential function of a pleading, the Court may strike it out in its entirety. This approach was endorsed in Gunns v Marr.[8]
5. It is recognised that self-represented litigants are entitled to some latitude in the manner in which they prepare their pleadings. Such parties are not expected to plead with the same precision or concision as experienced counsel. Nonetheless, even in the case of a self-represented litigant, the rules of pleading must be observed. In Russell v Murrindindi Shire Council (No 2),[9] Daly AJ said this:

"The statement of claim must be in a single document, and self-contained, such that it is not necessary to refer to other documents (themselves difficult to read, being handwritten, and poorly expressed) in order to determine what the nature of the plaintiff's claim, and the facts the plaintiff relies upon (and will need to prove) in order to obtain relief from the court. Whilst self-represented litigants are entitled to some latitude, and some assistance from the court, the rules of pleading must be obeyed so that the defendant (and the court) can understand the way in which a plaintiff's case is put."

6. Accordingly, I understand the threshold to be this: provided that a pleading fairly and unambiguously makes clear to the other party and to the Court what case is to be run and what facts are to be relied upon, the Court will not be overly technical in demanding compliance with every aspect of the rules. However, the pleading must, at a minimum, disclose with sufficient clarity the factual foundation of the claim or defence. Without such clarity, the pleading will be liable to be struck out as embarrassing.

1. Upon a summary judgment application, the plaintiff is required to file an affidavit that verifies the facts on which their claim is made and states the belief of the deponent that the defence to the claim has no real prospects of success. This is provided for in Order 22.04(1)(a) and 22.04(1)(b) of the County Court Rules.
2. Where a statement in a document tends to establish a fact and the document would, at trial, be admissible under relevant legislation to prove that fact, the affidavit may set out that statement: Order 22.04(2).
3. In essence, these provisions require the plaintiff to prove the disputed elements of their claim upon an affidavit that complies with the rules.
4. If it does so, then the defendant must "by affidavit or otherwise to the satisfaction of the Court" show cause against the application: Rule 22.05(1). An affidavit by the defendant may contain a statement of fact based on information and belief if the grounds are set out: Rule 22.05(2).
5. The Rules then provide for the plaintiff to file affidavits in reply to any affidavit material filed by the defendants.
6. The scheme of the Rules is to allow the plaintiff to prove its case in a summary way upon affidavit. If it does so, then it will be entitled to judgment against the defendants unless they show to the satisfaction of the Court a basis upon which the Court should not do so "by affidavit or otherwise".
7. The question for determination is whether the defendants' defences enjoy any reasonable prospect of success based in fact or law that could resist the plaintiff's claim for repayment and possession of the mortgaged property.
8. Further, the question arises as to whether the Court should exercise its discretion under s 64 of the CPA and order that the matter should proceed to trial as it is in the interests of justice to do so, or the dispute is of such a nature that only a full hearing on the merits is appropriate.
9. In this case, Capital Securities must establish by affidavit that:

(a) a valid loan agreement was entered into between Capital Securities, the Borrower and the Jaymes;

(b) a loan was duly advanced pursuant to that agreement;

(c) the property that is the subject of this proceeding is secured by a lawfully registered mortgage;

(d) that the defendants defaulted on their repayment obligations;

(e) that a notice of default was properly served; and

(f) that the default remains unremedied.

1. Based on the affidavits filed and the admissions made by Ms Jayme in her submission, I am satisfied that Capital has established each of the elements required to be proven in paragraphs ‎35(a) to (f). It has produced the loan agreement that was signed by the parties, including by the Jaymes as guarantors. It has produced statements demonstrating that the loan was advanced. It has produced evidence that a mortgage noting Capital as mortgagee was registered on title to the Property that was pledged by the Jaymes as security for the loan. Capital has deposed to the Jaymes falling into default and having served notices of default. They have also demonstrated that the default was not remedied and that the Jaymes remain in occupation of the Property.
2. None of this is seriously in contest by the Jaymes. The Jaymes did not file any affidavit in response on this application. They did file a submissions which does not provide any material on which I could conclude that they have demonstrated "on affidavit or otherwise" that they have a defence that enjoys any real prospect of success. Indeed, it really constitutes a series of admissions that the claim made by the plaintiff is made out.
3. The only matters that require some comment are these. In the Jaymes' defence, they say that "Repayments were made until later, and any arrears arose due to financial hardship that was communicated to the plaintiff." It is difficult to understand exactly what is meant by this - except to say that it appears to be an admission that the loan did fall into arrears. To the extent that Ms Jayme says that they have not received an accounting of the interest, fees and charges, I note that a statement of the loan account was attached to each of the demands served on the defendants. This is sufficient for the purposes of making good the plaintiff's claims. Under those circumstances, it does not constitute a defence that enjoys any real prospects of success.
4. In oral submissions before me today, the Jaymes have said that a broker introduced them to the loan with Capital on the basis that they would get them into a regular bank loan after some time. That has not transpired. There is no evidence of this before me. But even if there was, it is not apparent that dealings with the Jaymes's broker can be sheeted home to the plaintiff. Under those circumstances, this does not constitute a defence that enjoys any real prospects of success.
5. The Jaymes have a generalised complaint about the level of fees and charges that are being incurred. The defendants have accepted that they signed the loan agreement and, as has been pointed out by the plaintiff, they did obtain legal advice before entering the loan. A solicitor's certificate is in evidence. Under those circumstances, this does not constitute a defence that enjoys any real prospects of success.
6. The Jaymes also say that they are in the process of selling the property, but that it is not presently listed for sale. The proceeding has been on foot for quite some time and the defendants have had ample opportunity to sell the property if this is what they wanted to do. I do not consider that this affords them any defence to the claim that enjoys a real prospect of success.
7. I also do not consider that there is any basis to enliven the discretion under s 64 of the CPA to order that the matter should proceed to trial as it is in the interests of justice to do so, or that the dispute is of such a nature that only a full hearing on the merits is appropriate.

1. Having regard to the above, it is appropriate that judgment be entered for Capital on its claim and for possession of the Property.
2. I will now hear the parties on costs.

I certify that these 14 pages are a true copy of the judgment of His Honour Judge Wise delivered ex tempore on 17 April 2026.

[1] [2013] VSCA 158.

[3] [2016] VSCA 4 at [40].

[5] Spencer v The Commonwealth (2010) HCA 28; (2010) 241 CLR 118, per French CJ and Gummow J at [24].

[6] [2021] VSC 295.

[7] [1968] VicRp 7; [1968] VR 62 at [70].

[8] [2005] VSC 251 at [58].

[9] [2020] VSC 463 at [22].